PETERS, J.—I dissent. The majority have misconstrued section 170.6 of the Code of Civil Procedure. As construed by the majority, the statute deprives petitioner of fundamental constitutional rights.
[358]The Legislature, of course, was not required to grant to either civil or criminal litigants the right of peremptory challenge of a judge. But having decided to grant that right, it was required to grant it without discrimination. As interpreted by the majority, the discrimination is direct and apparent.
Section 170.6 was first adopted in 1957. (Stats. 1957, ch. 1055, p. 2228, § 1.) As then enacted, it applied only to civil actions. In 1959 (Stats. 1959, ch. 640, p. 2620, § 1) it was extended to criminal proceedings, apparently because the Legislature wanted to set at rest any possible question of constitutionality based upon discrimination against defendants in criminal actions. But because the statute was first enacted to apply only to civil proceedings and then, without any basic changes, extended to criminal proceedings, grave questions are presented as to whether the statute may be applied in identically the same fashion to both types of proceedings.
One of the main questions presented has to do with the burden of proof on such a motion. The majority opinion holds that on this motion, petitioner has the burden of showing that her interests conflict with those of her codefendant, Finch. However correct this rule as to the burden of proof may be in a civil case, it cannot be applied in a criminal proceeding. It is elementary, of course, that except as to certain affirmative defenses, in a criminal case, the burden is on the prosecution at all times.1 The defendant is not required to speak, and cannot be compelled to speak, until the prosecution has proved a prima facie case.
It must be remembered that under section 170.6 the defendant is required to make the motion before the trial has commenced. To require this defendant to disclose a possible conflict of interest with her codefendant before the trial has commenced is necessarily to require her to disclose the elements of her defense before the People have put on their case.
The majority seek to justify their attempt to shift the burden of proof as to the existence of an adverse interest by reference to the rule that the burden is on the defendant when he moves on the ground of prejudice to disqualify a judge in a criminal case under section 170 of the Code of [359]Civil Procedure. This is a non sequitur. The majority miss the point. Under section 170 the issue is actual prejudice. That issue has nothing to do with the nature or merits of the defendant’s defense. It involves facts unrelated to the merits of defendant’s defense. In such a situation the burden lawfully can be imposed upon the moving party. But under section 170.6 prejudice is conclusively presumed upon the filing of the affidavit. The burden the majority impose upon petitioner is the burden of showing that her interests are adverse to those of her codefendanfc. To do so requires that, before trial, she disclose the nature of her defense. This is an unconstitutional attempt to shift the burden of proof, deprives petitioner of a fair trial and denies to her due process of law.2
Moreover, we are here dealing with a situation where the jury was unable to agree after the first trial, and a new and different judge has now been selected to try the ease. It would certainly not be a strained interpretation of section 170.6 to hold that, where there is a mistrial, the right of challenge granted by the section is applicable whatever happened in the first abortive proceeding. If the right of challenge is an important one, and the Legislature has determined that it is, of what benefit is the conferred right if it is exercised in a proceeding that is wholly abortive and denied in the very proceedings in which the guilt or innocence of the accused is to be determined? The answer suggests itself.
The majority opinion places great weight on the portion of section 170.6 providing that where there are multiple plaintiffs or defendants “each side” shall have but one challenge. This provision was upheld in Johnson v. Superior Court, 50 Cal.2d 693, 700 [329 P.2d 5], at a time when the section referred only to civil actions. But it is not so clear that the reasoning of the Johnson case automatically applies to criminal proceedings. A clear analogy exists between peremptory challenges to jurors and the peremptory challenge to a judge. In civil cases coparties must join in such peremptory challenge to jurors (Code Civ. Proc., §601). In criminal cases the statute also provides that codefendants must join in the [360]peremptory challenges, but then confers extra personal challenges on each codefendant. (Pen. Code, § 1070.5.)
If there is but one “side” in a criminal case when interests are not adverse, then, to prevent discrimination, all defendants on that “side” should be required to join in the challenge. But the majority hold that Finch’s challenge to Judge Nye, in which petitioner did not join, exhausted the challenge afforded her “side” of the case. As we have seen, as to peremptory challenges of jurors, the Legislature was very careful to avoid this pitfall by requiring all defendants to join in the challenges. This was obviously done to prevent discrimination. But section 170.6, as interpreted by the majority, directly discriminates against petitioner either by not requiring her to join in the challenge, or by denying her the right of challenge.
There is still another question here presented. The affidavit filed in the instant case avers prejudice not only against petitioner but also against her attorneys. The affidavit was prepared and signed by the attorneys and joined in by petitioner. It avers that Judge Dawson “is prejudiced against said Carole Ann Tregoff Pappa and her attorneys ... so that affiants [the attorneys] cannot, or believe that they cannot get a fair and impartial trial or hearing before said judge” (Ex. 1 by reference made part of the petition).
The fact that the affidavit avers prejudice against both petitioner and her attorneys is significant. Section 170.6 very properly recognizes that it would be improper to try a ease before a judge that is prejudiced against a party or is prejudiced against the attorney for that party. The challenge is given to either or both. Stated another way, although a party may not have the right to challenge in his own right, the right to challenge still exists if the judge is prejudiced against the attorney for that party. This is made crystal clear by the express language of the section. Thus, subdivision (1) provides that the judge shall be disqualified on establishment of prejudice “against any party or attorney or the interest of any party or attorney.” Subdivision (2) provides how “any party to or any attorney” may establish the prejudice. Subdivision (3) limits a “party or attorney” to but one challenge, and then provides that, where multiple parties are involved, “Only one motion for each side may be made.”
The majority opinion recognizes, quite properly, that there may be more than two “sides” to a case. In reliance on the Johnson case (Johnson v. Superior Court, supra, 50 Cal.2d [361693]), it holds that, where there are multiple defendants, the separate defendants, if their interests are adverse, must he deemed to be on different “sides.” Since the right to challenge is given to both the party and to his attorney it must be that the attorney has the legal right to challenge even though the party he represents may not have the right to challenge in his own right. Thus, even if the majority opinion were correct in holding, which it is not, that Mrs. Pappa was on the same “side” as her codefendant Pinch, who has already exercised Ms right of challenge, the right to challenge on behalf of Mrs. Pappa still exists where the affidavit, as it does in the instant case, avers that the judge is prejudiced against her attorneys. Where there are codefendants, separately represented, and the judge is charged with being prejudiced against one of the attorneys whose client cannot exercise a challenge in her own right, then, as a matter of law, under the section, the challenging attorneys place their client on a different ‘1 side ’ ’ from the codefendant or his counsel. If this were not so, the granting of the right of challenge where the judge is charged with being prejudiced against the attorneys would be meaningless.
Even if the statute requires a showing on behalf of a party that his interests are adverse to those of the codefendant, a sufficient showing was here made. The trial court, in ruling on the motion to disqualify, was required to take judicial notice of the records of the case. The respondent conceded on oral argument (and such concession is in accord with the law) that the trial judge knew and was required to know at least three facts:
First, that the codefendant Finch had moved for a change of venue and that petitioner had opposed that motion.
Second, that codefendant Finch and petitioner are not represented by the same counsel but by different lawyers, and
Third, that petitioner moved for a separate trial, which motion was not joined in by Finch and which was denied by the trial court.
Thus, we know that Finch did not want to be tried in Los Angeles County and that petitioner did, and that petitioner wanted to be tried separately from Finch and that he wanted a joint trial. We also know they are separately represented. This does far more than merely hint at adverse interests. It shows that on vital important issues the parties are adverse, and have demonstrated that they are adverse.
Whatever the test as to adverse interests may be in a civil action, and whether the showing of adverse interests here [362]made would be sufficient in a civil action, is not at all relevant. We are here dealing with a criminal case, a criminal case in which the death penalty is involved. The very life of this petitioner is at stake. Certainly, if there is any substantial showing that the interests of the two codefendants are adverse the challenge should not be denied, but should be granted. Such a showing was here made. This is demonstrated not only by the facts above set forth but by the very fact that petitioner did not join in the challenge made by Finch to Judge Nye. That indicates that she was satisfied with him, but that Finch was not. In this respect also, their interests were adverse. To deny her the right of challenge and to confer it on the prosecution and on her eodefendant in view of the substantial showing of adverse interest, is to deny her due process and a fair trial.
Some further mention should be made of the fact that petitioner and defendant are represented by separate counsel. That very fact indicates that Finch and petitioner are not on the same “side.” In People v. Lanigan, 22 Cal.2d 569 [140 P.2d 24, 148 A.L.R. 176], it was held to be error for the trial court to have required the two defendants to be represented by a single counsel. The broad implication of the Lanigan case, and the cases cited in that opinion, is that the interests of codefendants in a criminal case are usually adverse. In so holding the court in the Lanigan case pointed out that where there are codefendants there will be occasions when objections must be made to evidence admissible as to one codefendant but inadmissible as to the other. The court also pointed out that many times one defendant will take the stand and the other may not. The court stated that counsel must not be required to represent both defendants “when the possibility of that divergence [of interests] is brought home to the court____” (P. 575.) The rationale of the opinion is that the mere “possibility” of interests being adverse is sufficient to bring the rule into play. For the same reasons the “possibility” that Finch and petitioner’s interests may be adverse (and there is more than such a “possibility” here shown), should be sufficient to warrant the disqualification.
The practical aspects of the present proceedings cannot and should not be overlooked. This is a capital case. Certainly justice and fair play, and it is submitted due process, require that petitioner have the same opportunity of challenge enjoyed and already exercised by the People and by Finch, especially where there exists more than a reasonable possibility that the [363]interests of the two defendants are adverse in important respects. It must be remembered that by allowing the challenge no prejudice can occur to anyone, including the People. But the denial of the challenge cannot help but throw grave legal doubts on the conviction of petitioner, if she be convicted, and can only then lead to multiple collateral attacks on the judgment.
For these many reasons I believe that the writ should issue.
SCHAUER, J. I concur with Justice Peters but do not imply agreement with the decision of the majority in Johnson v. Superior Court (1958), 50 Cal.2d 693 [329 P.2d 5].
Thus, while in a civil case the burden is on the one asserting that the statute of limitations has run, in a criminal ease “the prosecution has the burden of proving that the offense occurred within the applicable period of limitations. ’' (14 Cal.Jur.2d, p. 446, 5 202, and cases there cited.)
The requirement that the defendant in a criminal prosecution accept the burden of proof as to any issue is in derogation of the Fourteenth Amendment of the United States Constitution unless such transfer of the burden can be accomplished “without subjecting the accused to hardship or oppression.” (Morrison v. California, 291 U.S. 82, 89 [54 S.Ct. 281, 78 L.Ed. 664].) Here “hardship” and “oppression” are obvious.