Villarruel v. Superior Court

Opinion

FILES, P. J.

This original proceeding was brought in this Court to prohibit the superior court from trying the case entitled People v. Villarruel before a judge who allegedly had been disqualified under Code of Civil Procedure section 170.6. The sole issue is the timeliness of the motion for disqualification made by the defendant in that case, who is petitioner here.

On May 2, 1973, defendant was arraigned on an information and pleaded not guilty in department F of the east district of the superior court, where Judge Firth was presiding. Pretrial conference was set for May 16 in the same department.

On May 16 defendant waived “time for trial” and the .pretrial was continued to May 31, and again to June 7.

On June 7 Judge Firth, sitting in department F, ordered the case set for trial July 24 in department R of the east district.

On July 24 there was a hearing in department R, where Judge Goebel was then presiding. On defendant’s motion the trial was continued to October 15, 1973.

[561]

On October 3, 1973, defendant filed in the superior court a declaration under penalty of perjury that Judge Goebel was prejudiced against defendant so that he believed he could not have a fair and impartial trial before that judge. Judge Goebel thereupon made the following order:

“Declaration under Section 170.6 C.C.P. is stricken as not timely filed pursuant to 170.6 C.C.P. because the East District of the Superior Court of Los Angeles was operating under a Master Calendar Department prior to filing of the information, and has at all times up to the present time been operating under a Master Calendar system.”

On October 15, 1973, defendant filed his petition in this court seeking a writ to prohibit a trial of his case before Judge Goebel, and this court issued its alternative writ of prohibition.

The return filed on behalf of the respondent court includes a declaration by Judge Robert Firth which sets forth the following additional facts: Judge Firth is the supervising judge of the East District of the Los Angeles Superior Court and, since February 26, 1973, a “master calendar system” has been in effect there. All defendants bound over by the municipal court are ordered to appear in department F for arraignment and plea. If a plea of not guilty is received, a pretrial is conducted in department F. If the matter is not disposed of at pretrial, it is then set down for trial in one of several trial departments on a date certain. Motions preliminary to trial, such as motions under either section 995 or 1538.5 of the Penal Code or for discovery, are calendared thereafter by counsel on noticed motion in the trial department to which the case has been assigned.