People v. Superior Court

Opinion

BLEASE, Acting P. J. This matter arises on an original petition for writ of mandate. The sole question concerns the statutory 30-day limitations period for peremptory challenge of the judge in a court with only one judge. Byron Smith, real party in interest, is charged in such a court with certain misdemeanors. He contends the period runs from the date of first appearance of the party or of his counsel. Petitioners, the People, contend the period runs only from first appearance of the party. The People seek mandamus relief from a superior court ruling upholding Smith’s view. We will issue a peremptory writ commanding the superior court to vacate its ruling.

Facts

Smith is charged with two misdemeanor counts in a complaint filed in the South Sacramento County Judicial District. Government Code section 74206 states that in that district: “There shall be one judge.” Smith was arraigned on May 21, 1986. On June 16, 1986, defense counsel made his first appearance in the case. On June 26, 1986, the defense filed a written motion for peremptory challenge. On July 14, 1986, the municipal court denied the challenge as untimely. Thereafter, Smith filed an action in the superior court seeking a writ of mandate compelling the municipal court to [429]grant the motion for peremptory challenge. The cause was submitted on stipulated facts and on September 11, 1986, judgment was rendered directing issuance of the writ Smith sought. Thereafter, the People filed an original petition in this court seeking mandamus relief from the judgment of the superior court.

Discussion

Code of Civil Procedure section 170.6, subdivision (2) states in pertinent part: “If the court in which the action is pending is authorized to have no more than one judge and the motion claims that the duly elected or appointed judge of that court is prejudiced, the motion shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion.”1 The parties tender two readings of this provision. Smith suggests it means the motion must be made within “30 days from the date of the first appearance in the action of the party who is making the motion or [the attorney who is making the motion].” The People insist it means within “30 days from the date of the first appearance in the action of the party [by whom or on whose behalf the motion is made].” The People proffer the only reading faithful to the text of the statute and no persuasive reason impels a departure from that text.