People v. Barnfield

Opinion

BEACH, J.

Defendant Barnfield appeals from an order revoking probation.

Facts:

Appellant was charged in count I with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)), and in count II with robbery (Pen. Code, § 211). On September 20, 1973, appellarit withdrew an earlier plea of not guilty and entered a pléa of guilty to count I. On motion by the People, count II was dismissed. The court suspended criminal proceedings and placed appellant on probation for a period of five years.

On April 11, 1974, appellant was found to be in violation of probation. Probation was revoked and a bench warrant issued. On September 18, 1974, before the same judge who had presided over the proceedings of September 20, 1973, a deputy public defender was appointed to represent' appellant. Appellant’s oral motion pursuant to section 170; subdivision 5 of the Code of Civil Procedure to transfer the formal hearing on probation revocation to another department was denied.

On October 30, 1974, the formal probation revocation hearing was held, again before the same judge who presided on September 20, 1973,' and September 18, 1974. Appellant’s second motion pursuant to section 170, subdivision 5, was written; it was denied, the court finding the motion to have been untimely filed. Counsel inquired “Your Honor ... I assume that the Court would deny the motion as a peremptory challenge, is that correct?” The court replied “Under any and all grounds; any and all theories.”

1

Probation remained revoked and appellant was sentenced to state prison for the term prescribed by law.

[213]

Contentions on Appeal;

Appellant contends that:

1. The trial court erred in ruling that appellant’s 170.6 motion was not timely filed.

2. The trial court erred by refusing to allow the question of disqualification to be determined by another judge.