Flores v. Superior Court

California Court of Appeal Jan 2, 1991 No. B053656Published

Before: Klein (B.)

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Holding. A criminal defendant's Code of Civil Procedure section 170.6 challenge to an all-purpose judge assignment is timely if filed within 10 days of the defendant's appearance in superior court, as the criminal action commences upon the filing of the information, not the complaint.

Issues

Whether a Code of Civil Procedure section 170.6 challenge filed at the time of arraignment in superior court is timely under the 10-day rule for all-purpose assignments.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“the statute relied on by the trial court did not require petitioner to file his challenge to Judge Coen until 10 days after October 2.”

“the action against petitioner was commenced on October 2, 1990, by the filing in superior court of a felony information against him, and he entered his appearance in that action on October 2, 1990”

Opinion

KLEIN (B.), J.

A defendant in a criminal action seeks a writ of mandate to establish the timeliness of his Code of Civil Procedure section 170.6 challenge to the superior court judge to whom the case was assigned for all purposes.

By complaint, petitioner was accused of felonious assault with a deadly weapon causing great bodily injury. (Pen. Code, §§ 245, subd. (a)(1); 12022, subd. (b); 12022.7.) The preliminary examination was held September 18,

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1990. At its conclusion, the magistrate bound petitioner over for trial. The magistrate set arraignment for October 2, 1990, in department NV-E of the Los Angeles Superior Court, before Judge Ronald S. Coen.

The North Valley District of the Los Angeles Superior Court had promulgated (on September 4, 1990) and published (on September 14, 1990) a policy memorandum notifying attorneys that four departments in that district, including department NV-E, were designated as “direct calendar courts,” and that any case assigned to such a court for arraignment is assigned to the judge presiding in that court for all purposes, including trial. This policy memorandum identified Judge Coen as the judge presiding in department NV-E.

Petitioner appeared for arraignment in department NV-E on October 2, 1990, Judge Coen presiding. Judge Coen appointed the public defender to represent petitioner. Petitioner then filed his Code of Civil Procedure section 170.6 challenge to Judge Coen.

A 1989 amendment added the following sentence to Code of Civil Procedure section 170.6, subdivision (2): “If directed to the trial of a cause which has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance.”

Relying on this statute, the superior court struck petitioner’s Code of Civil Procedure section 170.6 challenge as untimely filed. This petition followed.

Flores v. Superior Court

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KLEIN (B.), J.

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