People v. Broxson

Opinion

SIMS, J.

Defendant appeals from the judgment and sentence imposed following his conviction (by negotiated plea) of second degree burglary. (Pen. Code, §§ 459, 460.)

In the trial court, defendant made a motion to peremptorily disqualify the sentencing judge pursuant to Code of Civil Procedure section 170.6. (All further statutory references are to the Code of Civil Procedure.)

1

The trial court struck the disqualification motion on the ground it was untimely. Defendant sought no relief by way of writ from the denial of the disqualification. However, on appeal, defendant now contends the sentencing judge erroneously failed to disqualify himself.

[979]

Subdivision (d) of section 170.3 provides: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding.”

In

Woodman

v.

Superior Court

(1987) 196 Cal.App.3d 407 [241 Cal.Rptr. 818], the Second District concluded subdivision (d) of section 170.3 is inapplicable where a peremptory disqualification has been sought pursuant to section 170.6. (Pp. 413-415.)

Woodman’s

analysis on this point was considered and rejected by the Fourth District in

Guedalia

v.

Superior Court

(1989) 211 Cal.App.3d 1156 [260 Cal.Rptr. 99] (review den.), where the court concluded “that section 170.3, subdivision (d) is the exclusive appellate remedy for any motions to disqualify a judge, including peremptory challenges pursuant to section 170.6.” (P. 1163.) It would be redundant to set out