Lyons v. Superior Court

[627]

Opinion

HOPPER, J.

Petitioner was charged with burglary and receiving stolen property. In the municipal court he entered a conditional plea of guilty to the burglary. The plea was conditioned upon the petitioner not receiving a prison sentence.

Superior Court Judge Simon Marootian refused to accept the plea when the defendant appeared in the superior court. On remand to the municipal court, the petitioner again entered a conditional plea of guilty to the burglary, the condition being that he not be initially sentenced to state prison, but that he could be sentenced to the California Rehabilitation Center. Petitioner then filed an affidavit of prejudice and moved to disqualify Judge Marootian under Code of Civil Procedure section 170.6. Petitioner now seeks a writ ordering the trial judge to grant the motion for disqualification. We grant the writ.

Real party contends that the hearing on a plea bargain does not involve a “contested issue of law or fact” within the meaning of the first sentence of subdivision (1) of the statute. Real party relies on

Fraijo

v.

Superior Court

(1973) 34 Cal.App.3d 222, 224 [109 Cal.Rptr. 909], for the proposition that neither the consideration of a plea bargain or imposition of sentence is a contested issue of law or fact within the meaning of section 170.6. We disagree. The statutory language “any civil or criminal action or special proceeding of any kind or character . . . which involves a contested issue of law or fact” is expansive language suggesting the Legislature intended the scope of the statute to be all encompassing.

1

In addition, there are numerous questions of law that may have to be determined by the court in deciding whether or not to accept the plea bargain. For example, whether or not the plea was made freely and has a basis in fact (see Pen. Code, § 1192.5) or whether the public interest would be served (“The trial judge must reach an independent judgment as to whether the public interest in the effective administration of criminal justice will be served by granting the concessions” (ABA Project on Standards for Crim. Justice, Stds. Relating to Pleas of Guilty (1968) p. 77)), or whether the plea, if it is not to the offense charged, is to a lesser offense reasonably related to the offense charged