People v. Replogle

KINGSLEY, J. This is a consolidated appeal1 from two separate judgments of conviction of burglary. In case No. 10334, defendant, after sundry proceedings hereinafter set forth, was found guilty of burglary in the first degree; a motion for new trial was denied, but the trial court, in lieu of granting the motion, reduced the offense to burglary in the second degree, denied probation, and imposed a prison sentence. In case No. 10335, defendant ultimately pled guilty to one count of a two-count information charging two other burglaries. The second count was dismissed, a prior felony conviction was found to be true, probation was denied, and a prison sentence was imposed.

Case No. 10334

Appointed counsel argues that the judgment and sentence in this case are void because the case proceeded before Judge Noble after a valid affidavit of prejudice had been filed against him pursuant to section 170.6 of the Code of Civil Procedure. The record does not sustain the contention.

Upon the filing of the information, the matter was first before Judge Noble on October 17, 1963; it was continued for plea until October 24, 1963, Deputy Public Defender Boags being appointed to represent defendant. On October 24, 1963, the case again came on for hearing before Judge Noble, Deputy Public Defender Montes then appearing for defendant. A motion to reduce bail was made and denied and the matter again continued for plea until October 31, 1963. On October 31, 1963, again before Judge Noble, the matter again came on for hearing, defendant then being represented by [639]Deputy Public Defender Watanabe. A plea of not guilty was entered and the case was set for trial on December 9, 1963, before Judge Noble (defendant personally waiving an earlier trial). On December 9, 1963, the ease was called for trial before Judge Noble; because of a congested calendar, it was continued until December 16, 1963. On this occasion, defendant was represented by Deputy Public Defender Schoenheit; a motion to dismiss the public defender as counsel was made and denied the witnesses were instructed to return on December 16th. On December 16, 1963, again before Judge Noble, defendant again appeared with Deputy Public Defender Schoenheit. On this occasion, after a motion to dismiss the public defender had been granted and a motion to appoint other counsel had been denied, an affidavit of prejudice was filed. The matter was then transferred to another department, presided over by Judge Fox.