Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-578339
Before Marchiano, P. J., Margulies, J. and Banke, J.
Joshua Begley is charged by information with murder (Pen. Code, § 187, subd. (a)) including special circumstances allegations (§ 190.2, subd. (a)(1) [financial gain]; § 190.2, subd. (a)(17) [while engaged in commission of one of specified felonies]), as well as other felony offenses with enhancement allegations. By timely petition for writ of mandate (Code Civ. Proc., § 170.3, subd. (d); People v. Hull (1991) 1 Cal.4th 266), he challenges the denial of his peremptory challenge (Code Civ. Proc., § 170.6, subd. (a)(2)) to the Honorable Gary Medvigy, Judge of the Sonoma County Superior Court.
All further statutory references are to the Penal Code unless otherwise indicated.
On March 9, 2010, at his arraignment on the information, defendant moved to disqualify Judge Medvigy. The motion was denied on the ground it was untimely because Judge Medvigy had been assigned pre-preliminary hearing pursuant to the Superior Court of Sonoma County, Local Rules, rule 8.1, for “all purposes” within the meaning of Code of Civil Procedure section 170.6. Judge Medvigy, sitting as a magistrate, presided at defendant’s preliminary hearing.
We previously issued a temporary stay of any further proceedings before Judge Medvigy, sought opposition from the Attorney General, and notified all parties that we might choose to act by issuing our peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) The Attorney General has notified us that he will not be filing opposition.
We hold that on the record provided to us, defendant’s challenge was timely. Accordingly, we direct issuance of a peremptory writ in the first instance.
In doing so, we do not consider declarations included with the petition concerning practice in Sonoma County Superior Court, those declarations not having been a part of the record before the superior court. (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1173, fn. 5.)
Lavi, supra, 4 Cal.4th 1164explained that “[F]or a case assignment to be an all purpose assignment, two prerequisites must be met. First, the method of assigning cases must instantly pinpoint the judge whom the parties can expect to ultimately preside at trial. Second, that same judge must be expected to process the case in its totality.” (Id. at p. 1180, internal quotations, citation & fn. omitted.) “[I]f, at the time of the assignment, substantial matters remain to be processed in addition to trial, and the assigned judge is expected to process all those matters from that point on... then the all purpose assignment rule may apply.” (Id. at p. 1180, fn. 13.)
Having heard the preliminary hearing, Judge Medvigy could not hear challenges to any rulings made at that hearing (§ 859c) and so could not “process the case in its totality.” (Lavi, supra, 4 Cal.4th at p. 1180, internal quoations & citation omitted.) Further, Sonoma County Superior Court, rule 8.1 regarding all purpose assignments is ambiguous, given its reference to the court’s Web site. Finally, as defendant correctly observes, the time for filing his challenge did not commence until his arraignment on the information. (Flores v. Superior Court (1991) 226 Cal.App.3d 797.) Under these circumstances, defendant’s peremptory challenge was timely.
The Superior Court of Sonoma County, Local Rules, rule 8.1 so provides:
Let a peremptory writ of mandate issue commanding respondent, Sonoma County Superior Court, to set aside its order denying defendant’s motion pursuant to section 170.6 and to instead grant the motion.
The stay of proceedings before Judge Medvigy, previously imposed, shall remain in effect until the remittitur issues. As noted in our order filed March 18, 2010, the “stay does not apply to proceedings before any other judge of the Sonoma County Superior Court.”
This opinion is final as to this court immediately.
“CRIMINAL COURTS: ASSIGNMENT OF CASES
“All criminal felony matters, with the exception of 1210 PC Court, shall be initially set in the designated Early Case Resolution Department (ECR). If a felony case is not resolved in the Early Case Resolution Department, it shall be assigned for ‘all purposes’ to another department on a predetermined alphabetical split basis.
“All criminal misdemeanor matters, with the exception of misdemeanor Domestic Violence and 1210 PC cases, shall be assigned for ‘all purposes’ to a misdemeanor department on a predetermined alphabetical split basis.
“A copy of the Criminal Division Schedule may be obtained from the Superior Court Clerk’s Office Criminal Division, on our website: sonomasuperiorcourt.com. (Eff. 1/1/1997; Rev. 1/1/2005, 7/1/2009).)”