Barrett v. Superior Court

Opinion

SCOTLAND, P. J. —Petitioner James Scott Barrett seeks a writ of mandate directing respondent Yolo County Superior Court to vacate its order disallowing a peremptory challenge (Code Civ. Proc., § 170.6) to the Honorable Timothy L. Fall. (Further section references are to the Code of Civil Procedure unless specified otherwise.) Petitioner contends, and the People concede, Judge Fall erred in denying the challenge on the ground that it was untimely because Judge Fall had presided at petitioner’s preliminary hearing. We shall issue a peremptory writ of mandate.

Background

Petitioner was charged with vehicular manslaughter (Pen. Code, § 191.5, subd. (a)) and driving under the influence of alcohol (DUI) causing injury with two or more prior violations of Vehicle Code section 23152, subdivision (a) (Veh. Code, §§ 23153, subds. (a), (b), 23190, subd. (a)). The complaint further alleged that petitioner inflicted great bodily injury upon four victims within the meaning of Penal Code section 12022.7, subdivision (a) and proximately caused bodily injury to multiple victims (Veh. Code, former § 23182).

[4]On January 21 and 22, 1998, a preliminary hearing was conducted before Judge Fall. The People presented evidence that, despite rainy weather and signs warning of flooding on the road, defendant drove his car at an excessive rate of speed for the conditions and caused an accident that killed one person and inflicted great bodily injury upon three others. Approximately two hours after the accident, defendant had a blood-alcohol level of .13; he also had two prior DUI convictions. At the conclusion of the hearing, petitioner was held to answer on all counts alleged in the complaint. Thereafter, the District Attorney of Yolo County filed an information charging petitioner with those offenses.

On or about September 4, 1998, Judge Fall was assigned to hear petitioner’s nonstatutory motion to dismiss the information! On September 8, 1998, petitioner moved pursuant to section 170.6 to disqualify Judge Fall from hearing the matter.

Judge Fall denied the motion, but the parties did not receive notice of the ruling until October 1, 1998, at the hearing on the motion to dismiss. In denying the motion, Judge Fall stated: “My understanding of the cases, including People v. Dejesus [(1995) 38 Cal.App.4th 1 [44 Cal.Rptr.2d 796]], which has some dicta about preliminary hearings and [section] 170.6, there’s nothing showing that I am subject to a [section] 170.6 after I’ve done a preliminary hearing. Reasonable minds can differ on what the cases mean, but that’s my interpretation of them. And because Section 170 says I’m supposed to take every case that appears in court unless disqualified, I try to be careful to make sure I don’t go shunning off cases if I’m not disqualified for them. I think that’s the situation here, so I was planning to do the hearing on October 5th.”