Opinion
H037498
02-02-2012
KEVIN GEBREMEDHIN, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. C1104254)
Petitioner Kevin Gebremedhin, a criminal defendant awaiting trial, seeks a writ of mandate directing Judge Julia Alloggiamento to vacate her order denying his peremptory challenge pursuant to Code of Civil Procedure section 170.6 (hereafter § 170.6). Judge Alloggiamento held that the peremptory challenge was barred because the judge had already made factual determinations at a prior hearing in the case. We conclude that because Judge Alloggiamento's prior factual determinations were not related to the merits of defendant's case it was error to deny the motion. Accordingly, we shall issue the writ as requested.
A. Factual and Procedural Background
Defendant appeared with his attorney before Judge Alloggiamento on September 15, 2011, for a hearing on whether to revoke his supervised release on his own recognizance (OR). After hearing argument from both sides the judge remanded defendant and set bail at three times the scheduled amount. Two weeks later, on September 29, 2011, defendant filed a section 170.6 motion to disqualify Judge Alloggiamento. The judge denied the motion on October 17, 2011. Judge Alloggiamento explained, "[W]e discussed bail, and you asked to be heard on that. There was an argument by both sides on that. A factual determination was made by this Court, and the [section 170.6] [motion] came after that decision was made." The judge emphasized that her ruling on the section 170.6 motion was based on the fact that she had previously ruled on a contested issue: "[W]hen there is an argument to be made where both sides have differing opinions and argument regarding [revocation of supervised release] and subsequent bail, and this Court heard and made a factual determination based on arguments that were made that were opposed--I mean, you made an argument. The D.A. made an argument. I made a ruling. That makes this motion untimely."
Defendant has filed a timely petition for writ of mandate and request for stay of the trial court proceedings. We issued an order staying trial court proceedings, notifying the parties that the court was considering issuing a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180), and giving the Attorney General 15 days to submit opposition. The Attorney General has expressly declined to oppose.
B. Discussion
Because review of the order before us requires that we apply the law to undisputed facts, our review is de novo. (Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489, 493.) Under section 170.6, a party or the party's attorney may disqualify the judge before whom the action is pending simply by alleging that "the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge." (§ 170.6, subd. (b).) "Various restrictions on the timing of the motion are imposed by this statute, and a party may exercise such a challenge only once during the trial of an action or a special proceeding. A motion that conforms to all the requirements of section 170.6, however, must be granted." (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1248-1249.) But some motions that would be timely under the filing requirements of section 170.6 must be denied "if the judge has presided at an earlier hearing which involved a determination of contested factual issues relating to the merits." (Grant v. Superior Court (2001) 90 Cal.App.4th 518, 525.) That is apparently the rule upon which Judge Alloggiamento relied in this case. As defendant maintains, however, the judge's prior factual determination did not relate to the merits and, therefore, the motion should have been granted. This court's opinion in Swift v. Superior Court (2009) 172 Cal.App.4th 878 (Swift) is precisely on point.
Some courts, including this one, have applied the abuse of discretion standard of review to an order denying as untimely a section 170.6 peremptory challenge. (See, e.g., Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315; Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1098.) In this case, the ruling is erroneous under either standard. (Cf. Jane Doe 8015 v. Superior Court, supra, 148 Cal.App.4th at p. 493.)
In Swift, the trial judge denied a section 170.6 motion on the ground he had made a prior factual determination in the case. This court issued a writ of mandate vacating the trial court's order because the prior factual determination upon which the trial judge relied was a ruling on a discovery motion. As Swift pointed out, " 'Only a hearing which involves a determination of contested factual issues relating to the merits' " will justify the denial of a subsequent motion under section 170.6. (Swift, supra, 172 Cal.App.4th at p. 883.) The resolution of factual issues not related to the merits of the case does not preclude a section 170.6 peremptory challenge. As section 170.6, subdivision (a)(2) states, "The fact that a judge . . . has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion prior to trial, and not involving a determination of contested fact issues relating to the merits, shall not preclude the later making of the motion provided for in this paragraph . . . ." (Italics added.)
Although Swift is a civil case, its analysis is directly applicable to this criminal matter. Judge Alloggiamento was correctly concerned that she had made a determination on a contested factual issue but, because her determination did not involve the merits of defendant's case, defendant was not barred from making his peremptory challenge under section 170.6. Many pretrial motions involve contested facts that do not relate to the merits of the case. "Such motions include a motion to set aside an indictment, a motion for judgment on the pleadings, a motion for a continuance, a motion to amend the information, a motion for summary judgment, and an ex parte application for a temporary restraining order." (Swift, supra, 172 Cal.App.4th at p. 883, citing School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1133.) None of these types of motions would normally bar a section 170.6 challenge. Moreover, as Swift held, even the judge's having drawn upon his knowledge regarding the parties' past conduct in the case "is insufficient to broaden the category of cases in which a peremptory challenge is considered untimely." (Swift, supra, at p. 885.)
Some pretrial motions do involve the merits and they will prevent the party from succeeding at a later motion under section 170.6. "In regard to a motion to suppress a confession, for instance, the court presides over a 'contested pretrial factual hearing to determine the admissibility of incriminating evidence' which 'necessarily involves an adjudication that is of consequence to the determination of the legal guilt or innocence of the accused.' " (Swift, supra, 172 Cal.App.4th at p. 883, quoting In re Abdul Y. (1982) 130 Cal.App.3d 847, 859-860.) But in the present case, the motion to revoke defendant's OR release and set bail is not akin to a suppression motion. The factual issue the judge resolved--defendant's suitability for release--is separate from the question of defendant's guilt or innocence in the underlying criminal matter. Accordingly, since there is no dispute that the motion was otherwise timely, the trial court erred in denying it.
C. Disposition
Let a peremptory writ of mandate issue directing respondent court to vacate its October 17, 2011 order denying defendant's motion under Code of Civil Procedure section 170.6 and enter a new order granting the motion. The temporary stay issued on December 8, 2011, is lifted.
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Premo, Acting P.J.
WE CONCUR:
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Elia, J.
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Mihara, J.