Opinion
C079009
08-18-2017
LORAYNA GONSALVES, Petitioner, v. THE SUPERIOR COURT OF BUTTE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM036102)
A jury convicted Lorayna Gonsalves of first degree residential robbery and home invasion robbery. Approximately a week before the sentencing hearing, Gonsalves substituted attorneys Scott Wippert and Robyn Bramson, with the law firm Wippert & Bramson, as counsel of record for Gonsalves in place of her trial counsel. Wippert and Bramson asked for a continuance of the sentencing hearing and indicated they would file a motion for new trial based on ineffective assistance of trial counsel and trial court error. The trial court rescheduled the sentencing hearing and ordered Wippert and Bramson to file the new trial motion a week before the rescheduled hearing.
Gonsalves's request for judicial notice of her prior petition for writ of mandate and this court's opinion in case No. C077875 is granted.
Wippert and Bramson subsequently sought another continuance of the sentencing hearing date, asserting that Wippert would be in trial that day and Bramson had an appellate oral argument the following day. The trial court once again rescheduled the sentencing hearing but did not change the deadline to file the motion for new trial. Wippert and Bramson did not file a motion for new trial by the court-ordered deadline.
A couple of days before the rescheduled sentencing hearing, Wippert and Bramson made a third request to continue the hearing, listing many obligations in other matters around the state. They arranged to send another attorney to appear at the hearing on behalf of Gonsalves, but the attorney said he was not prepared to handle sentencing. The trial court set another sentencing hearing and ordered attorneys Wippert and Bramson to appear on that specified date. In response to the order to appear, Wippert contacted the clerk's office to explain that Wippert and Bramson would be unavailable on the date ordered by the court.
On the date in which they were ordered to appear, Wippert and Bramson sent another attorney to appear due to their unavailability. The trial judge said excessive continuances caused a hardship. The judge said she was weighing Gonsalves's right to counsel of her choosing with the right of the People to have an expeditious determination of the case. The trial judge said that after granting numerous continuances, it could not wait any longer for Wippert and Bramson to become available. Over Gonsalves's objection, the trial judge relieved Wippert and Bramson of representation. Wippert and Bramson subsequently sought reinstatement but the trial court denied their request.
Gonsalves filed a petition for writ of mandate in this court in case No. C077875. This court notified the trial judge of its intent to issue a peremptory writ of mandate under Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 unless the trial judge vacated its order relieving Wippert and Bramson of representation. In response, the trial judge arranged for the courtroom clerk to contact Wippert and Bramson to set a hearing regarding reinstatement, but when the clerk was unable to reach them, the trial court once again ordered Wippert and Bramson to appear on a specified date. That hearing date was continued, however, because Wippert and Bramson did not receive the order to appear until the afternoon before the hearing. At the rescheduled hearing the trial court reinstated Wippert and Bramson as counsel of record for Gonsalves. Wippert and Bramson promptly moved to disqualify the trial judge for cause pursuant to Code of Civil Procedure section 170.1.
Undesignated statutory references are to the Code of Civil Procedure. --------
The Chief Justice assigned Judge Peter Twede, on special assignment from Glenn County, to review the disqualification motion along with Gonsalves's statement of disqualification, the trial judge's verified answer, and the submitted declarations and points and authorities. Judge Twede denied the motion, finding as follows: the trial judge continued the matter several times; Wippert and Bramson repeatedly represented that a motion for new trial would be forthcoming but such a motion was never filed; each attorney appearing on behalf of Wippert and Bramson lacked knowledge of the case and one even lacked knowledge of why Bramson was not available; Wippert and Bramson's first appearance in the courtroom was six months after conviction; the trial judge's handling of the hearings was accomplished with a dignified and courteous demeanor and did not show bias or prejudice against anyone, especially Gonsalves; it was not inappropriate for the trial judge to ask Gonsalves whether she wanted to continue with Wippert and Bramson under the circumstances; and although the final order to appear included a statement that if counsel did not appear a warrant would issue for their arrest, the format of the order did not support a finding of bias or prejudice.
Gonsalves filed a second petition for writ of mandate challenging the denial of her disqualification motion, the instant petition in this case.
DISCUSSION
As a threshold matter, the Attorney General argues Gonsalves's second writ petition was untimely. Section 170.3 provides for a 10-day filing deadline in this context, but the deadline is triggered by notice of entry of the trial court's determination. (§ 170.3, subd. (d).) When notice is sent by mail, the time is extended by five days. (§ 1013, subd. (a).) On March 12, the trial court clerk mailed the notice to the wrong address; the clerk did not mail the notice to counsel's address of record until April 6. Allowing five days for mailing, the petition was timely filed on April 21.
Accordingly, we turn to the merits of Gonsalves's writ petition.
Section 170.1 lists various grounds for disqualification of a judge. Gonsalves asserts the ground set forth in section 170.1, subdivision (a)(6)(A)(iii), which provides that a judge shall be disqualified if "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."
"A determination on a challenge for cause 'touches upon the core of the judicial process -- the appearance of objectivity of the decision maker -- requiring a careful balancing of the affected interests. [A] decision must consider both the public's right to be assured of the fair, but yet efficient, resolution of disputes and the parties' right to a decision based upon the court's objective evaluation of the facts and law. . . . Judicial responsibility does not require shrinking every time an advocate asserts the objective and fair judge appears to be biased. The duty of a judge to sit where not disqualified is equally as strong as the duty not to sit when disqualified.' " (Flier v. Superior Court (1994) 23 Cal.App.4th 165, 170, original italics (Flier), quoting United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 100.)
The standard under section 170.1, subdivision (a)(6)(A)(iii), is an objective one. (Flier, supra, 23 Cal.App.4th at p. 170.) As such, the decision is not solely based on the judge's personal view of his or her own impartiality, nor is it solely based on the litigants' partisan views. (Ibid.) Mere judicial error does not establish bias and normally is not a proper ground for disqualification. (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1079.) And disagreement with a judge's decisions also does not form the basis for disqualification. (Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 51.) The question is whether the record establishes "the judge would not be able to be impartial toward a particular party." (Flier, supra, 23 Cal.App.4th at p. 171.) We decide this ultimate issue as a question of law. (Ibid.)
The record indicates the trial judge was never intemperate and her judicial demeanor was never inappropriate. Gonsalves submitted a declaration from Carolyn Ball which made various conclusory statements about the trial judge's handling of certain hearings. But the Ball declaration does not identify Carolyn Ball other than provide her name, it references two hearings for which hearing transcripts are not in our record, and it references a third hearing for which the hearing transcript in our record does not support Ball's opinions and conclusory statements.
Wippert eventually appeared in the courtroom and at one point claimed the trial judge was not allowing him to make his record, but the hearing transcript shows the trial judge allowed Wippert to speak for more than 40 minutes.
The trial judge granted many continuances until she became concerned about the ongoing delay with no clear end in sight. Wippert and Bramson repeatedly sent other attorneys in their place who were not prepared to handle the case. The trial judge sanctioned Wippert and Bramson but then rescinded the sanctions on her own. The trial judge concluded Wippert and Bramson were unavailable and that they had abandoned their client, but when this court concluded those findings were not supported by the record, the trial judge immediately complied with this court's direction and reinstated Wippert and Bramson. There is no evidence the arrest warrant language was placed in the trial court's order at the trial judge's direction or even with her knowledge, no evidence she ever pursued an arrest warrant when Wippert and Bramson once again did not appear, and no evidence the trial judge was responsible for delayed notice to Wippert and Bramson.
Based on our independent review of the record, it has not been established that the trial judge would not be able to be impartial toward Gonsalves or her attorneys of record. (Flier, supra, 23 Cal.App.4th at p. 171.) There is no basis for disqualification and no showing that Gonsalves has been denied due process.
DISPOSITION
The petition for writ of mandate is denied. The alternative writ is discharged and the stay order is vacated upon finality of this opinion.
/S/_________
MAURO, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
RENNER, J.