People v. Jarvis

Opinion

PUGLIA, P. J.

Defendant appeals from the judgment of conviction entered upon plea of guilty to issuing checks without sufficient funds with intent to defraud. (Pen. Code, § 476.) Defendant contends the court erred in denying her motion, pursuant to Code of Civil Procedure section 170.6, to disqualify the sentencing judge. Defendant also contends the court erred in sentencing her to the state prison. We shall affirm.

The procedural history of the case demonstrates that defendant’s disqualification motion was untimely. On April 15, 1981, then Municipal Court Judge Tochterman, sitting as a magistrate, accepted defendant’s plea to a felony charge of issuing checks without sufficient funds with intent to defraud on condition that defendant not be sentenced to the state prison. The magistrate dismissed three counts alleging the commission of the same offense and certified the case to the superior court.

On June 1, 1981, Superior Court Judge Diaz rejected the plea bargain and remanded the matter back to the municipal court.

On August 17, 1981, Municipal Court Judge Fields, sitting as a magistrate, accepted defendant’s plea of guilty to the same felony count as before, but without the condition that she not be committed to the state prison. The matter was again certified to superior court.

On September 14, 1981, defendant appeared before former Municipal Court Judge Tochterman, now newly appointed to the superior court, for judgment and sentencing. The court received and filed two physicians’ letters submitted by defendant and continued the matter. On September 17, 1981, defendant again appeared before Judge Tochterman. The court received and filed the probation report and, upon defendant’s request, remanded the case to the municipal court to allow ■defendant to move to withdraw her plea. On September 18, 1981, the municipal court denied defendant’s motion to withdraw her plea and returned the case to the superior court.

[157]

On September 21, 1981, defendant appeared again before Judge Tochterman. The court continued the matter at defendant’s request and referred the case to the probation department for a supplemental report, refusing to reinstate defendant’s bail on the ground that a state prison commitment was very likely. On October 5, 1981, defendant appeared before Judge Tochterman for judgment and sentencing. The court continued the matter until October 20 for a Penal Code section 1204 hearing.