Overton v. Superior Court

Opinion

WALLIN, J.

—Richard Overton petitions for a writ of mandate compelling Superior Court Judge David O. Carter to disqualify himself from further

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proceedings in Overton’s pending murder case, contending disqualification was mandatory under Code of Civil Procedure section 170.6.

1

We grant the petition.

In July 1993 we issued a writ of mandate compelling the trial court to declare a mistrial in Overton’s case and relieve original trial counsel. We found the need to relieve counsel was caused by the conflict which arose when Overton and his counsel traded accusations involving tampering with evidence.

2

During the proceedings on the conflict issue, the trial judge, who is the subject of this proceeding, mentioned the possibility he might take Overton into custody, but he never did so.

Overton sought the writ of mandate after the judge had gone to exceptional lengths to “save” the trial, holding 20 in camera hearings on the status of Overton’s trial counsel, who had been disabled and hospitalized with severe depression. The judge expressed much concern about the tremendous costs a new trial would occasion. We ordered the court to declare the mistrial based upon the extraordinary delay of more than six months between the presentation of the prosecution case and the defense case, which was occasioned by counsel’s illness.

After the remittitur issued, Overton’s new counsel filed a peremptory challenge to the trial judge pursuant to section 170.6. The judge refused to disqualify himself, ruling the motion was untimely. Overton had prepared a motion to disqualify the court for actual prejudice, but opted not to file it pending resolution of the section 170.6 motion.

3

Section 170.6, subdivision (2) provides in relevant part that “. . . a motion [to peremptorily disqualify the trial judge] may be made following reversal