Opinion
A103052.
7-9-2003
RONALD LEE FREEMAN, Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
By timely petition for writ of mandate (Code Civ. Proc., §§ 170.3, subd. (d), 170.6; People v. Hull (1992) 1 Cal.4th 266, 820 P.2d 1036), Ronald Freeman challenges an order denying his motion to disqualify the Honorable William T. McGivern on the ground that the motion was untimely.
The case was assigned to Judge McGiverns courtroom on May 30, 2003 to set a hearing date for Freemans Penal Code section 995 motion. It was continued to June 18, 2003 for further setting. The case had been assigned to a different department for trial. On June 18, 2003, petitioner attempted to make a motion to disqualify Judge McGivern. Before petitioner had the opportunity to ask to be sworn to make his motion, the prosecutor objected on the ground of timeliness, and Judge McGivern ruled the challenge untimely and set September 9, 2003 as the hearing date for the section 995 motion.
As the People concede, the motion to disqualify was timely under the "10-day/5-day" rule, since the case was not assigned for trial from a master calendar department, nor assigned to Judge McGivern for all purposes. (Code Civ. Proc., § 170.6, subd. (2); People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1185, 847 P.2d 1031; Depper v. Superior Court (1999) 74 Cal.App.4th 15.) Given the Peoples concession, no useful purpose would be served by issuance of an alternative writ, further briefing, and oral argument. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241, 970 P.2d 872.)
Let a peremptory writ of mandate issue, commanding respondent Marin County Superior Court to set aside its June 18, 2003 order denying petitioners request to make a motion to disqualify, and to instead permit petitioner to renew his motion and to be sworn in accordance with Code of Civil Procedure section 170.6. This opinion shall be final as to this court immediately. (Cal. Rules of Court, rule 24(b)(3).) Therefore, a stay of proceedings below is unnecessary, and petitioners request for a stay is denied.