People v. Smith

BURKE, P. J.

May a defendant file an affidavit under section 170.6 of the Code of Civil Procedure to disqualify a judge from hearing a purported violation of probation where the judge has had no previous connection with the ease? This is the basic issue presented in this appeal.

[856]

On August 27, 1959, defendant was convicted of a violation of section 480 of the Vehicle Code, a felony. Judge Bayard Rhone, who tried the case, granted defendant probation for a term of three years with one of the conditions being that he spend ninety days in the county jail.

Defendant was subsequently convicted of battery in the municipal court and thereupon was returned to the superior court for possible modification of probation. A hearing on the report of the probation officer was held on November 21, 1960, before Judge Gregory P. Maushart. Probation was modified to the extent that defendant was ordered to submit to treatment by the Veterans Administration and not to annoy or molest his wife—all other conditions of probation to remain the same.

On February 28, 1961, the probation officer filed a further report recommending modification of probation, alleging that defendant had been arrested for being drunk. Imposition of sentence on this charge was suspended by the Los Angeles Municipal Court on November 30, 1960, and one-year summary probation was ordered.

The modification of probation by the superior court came on for hearing before Judge Joseph L. Call on March 1, 1961. Defendant was present but not represented by counsel. Judge Call revoked probation and sentenced defendant to state prison for the term prescribed by law on the violation of section 480 of the Vehicle Code.

On March 3, 1961, on the court’s own motion, Judge Call returned defendant to the court, declared the sentence theretofore imposed on March 1, 1961, to be void and set it aside. The court appointed the public defender to represent defendant and on motion of defendant’s attorney the matter was continued to March 6, 1961.

On March 6, 1961, defendant filed an affidavit pursuant to section 170.6 of the Code of Civil Procedure alleging Judge Call to be prejudiced against him. The affidavit was ordered stricken by the judge who took the position that such an affidavit could not be filed after the trial on the original charge had been commenced; that the same reasoning would apply on a hearing on modification or revocation of probation as would pertain to a motion for new trial; that the modification or revocation of probation proceedings were all continuations of the original trial and not a separate proceeding or hearing in the meaning of section 170.6, Code of Civil Procedure.