People v. Bryant

Opinion

EVANS, J.

Following a finding that defendant was unfit to be dealt with by the juvenile court (Welf. & Inst. Code, § 707), he was charged in adult superior court with murder (Pen. Code, § 187). There, he unsuccessfully moved to have the trial judge recuse himself from presiding over further criminal proceedings on the ground that the judge, the Honorable James Kleaver, had also conducted the fitness hearing. Defendant then agreed to submit the matter on the transcript of the preliminary examination with the understanding that he would be found guilty of voluntary manslaughter (Pen. Code, § 192). He was thereafter so convicted and sentenced to state prison for the middle term of six years.

On appeal he contends the trial court erred when it denied his motion for disqualification or recusal. We disagree and shall affirm the judgment.

The motion for the trial court to recuse itself was, in its entirety, as follows:

“Mr. Knoll: The other matter is, I believe I brought this up at the fitness hearing. I did a little bit of research on it last week. It appears to me there is some question as to whether the trier of fact who hears the fitness hearing can actually sit on the—I don’t know what proceedings—they’re certainly not the trial of the case in general.

“The Court: The issue that you raised earlier, I think, relates to the ability of [the] judge who hears the fitness hearing to then preside at the jurisdiction hearing if it continues to be in juvenile court, absent an objection on the part of a juvenile, now, being the juvenile court. I know of no provisions either in case law or statute, although I’m certainly subject to being corrected on it, that is an automatic preclusion of the judge who hears the fitness hearing from hearing the case involving the criminal charge in adult superior court. I’m simply not aware of any.

“Mr. Knoll: I agree that’s what that case was about. But my recollection of that case was that the fact that in the fitness hearing, the trier of fact, the sitting judge, read the probation report which contained quite a bit of hearsay material that would not be normally admissible in a contested hearing or in some of the other types of hearings that we have. And I think that that was what the objectionable portion of it was. Consequently, I believe that we find ourselves in that same position in this case.

[1572]