Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. JV100039.
Dondero, J.
This is an appeal from a judgment and sentence after trial in juvenile court. C.A. (minor) was the accused in this case. On March 11, 2010, the district attorney filed a two-count petition alleging in Count One a violation of Health & Safety Code section 11359 (possession for sale of marijuana), and in Count Two, a violation of Health & Safety Code section 11357, subdivision (e) (possession of marijuana on school property while the school was open for classes).
Beginning on June 23, 2010, a contested hearing was held on these allegations before Commissioner Michael Eannarino. The proceedings were eventually continued to July 14, 2010, and September 21, 2010. The trial court sustained the petition on Count Two on September 21, 2010, but found the prosecution failed to satisfy its burden of proof on Count One. On November 9, 2010, the court sentenced the minor to probation without wardship as recommended by juvenile probation.
In July 2010, counsel for minor filed a motion under Code of Civil Procedure section 170.1, accusing the trial court of bias. Pursuant to section 170.3, subdivision (c)(3), the trial court filed a verified response to minor’s motion to disqualify on July 30, 2010. The district attorney also responded to the motion to disqualify on July 30, 2010. On September 8, 2010, Judge Eugene Hyman of the County of Santa Clara Superior Court filed his ruling denying the motion to disqualify.
Appellate counsel has reviewed the file in the case and has determined there are no meritorious issues to raise on appeal. She has complied with the relevant case authorities. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Minor was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.
STATEMENT OF FACTS
On January 13, 2010, Kevin Scheffler was employed as assistant principal of Eureka High School in the County of Humboldt. He was monitoring students as they arrived for school. Scheffler noticed minor mixing with particular students in a suspicious manner, and observed the minor and a couple of other students enter the industrial education building. The assistant principal advised Grant Smith, campus supervisor, to check out the students who entered the building and see what was happening. After some communication between Smith and Scheffler, two of the students, Christopher F. and minor, were brought to the office of the assistant principal. While in the office of Scheffler, minor was searched and marijuana was found in his pocket. On the person of Christopher F. was found a metal container and $4.
Minor advised Scheffler that he had entered the bathroom in the industrial education building to sell marijuana to Christopher F. Minor needed some money to pay off a debt he had to another student. Scheffler decided to call the Eureka Police to the campus and they took minor into custody. Christopher F. told Scheffler that the two boys were transacting in a handicapped stall in the bathroom and that minor called the substance in the container “weed, ” which Scheffler knew was a term for marijuana.
Christopher F. testified at the hearing he met minor at the school. After minor received a tin container from another student, they went in the bathroom where minor offered Christopher F. “weed” from the container.
In the defense case, Katherine Truitt (Truitt) testified she was an investigator for the public defender. She interviewed Christopher F. after the incident. He advised her that minor was owed money by another student. To pay off the debt, the student gave minor the tin container. Christopher F. recalled the container smelled of marijuana when minor took possession of it, and Christopher F. assumed it contained the controlled substance.
Another defense witness was Christian S. He was also a student at Eureka High School at the time and was in the bathroom when Grant Smith took minor and Christopher F. from the bathroom stall. Christian S. testified that Christopher F. had the tin container when Christian S. first saw it, and was showing it to minor. Minor examined the container and its contents; he handed it back to Christopher F. Christian S. also recalled telling Truitt that a third person had approached minor and Christopher F. giving them the tin container and a bag of marijuana before the entry of Smith into the bathroom. After receiving the items from the unnamed student, minor and Christopher F. went into the bathroom stall.
Minor testified he received the tin container from an unnamed student who owed minor $5. A few days before the arrest for possession, minor had loaned the unnamed student money so the student could go to the store. The tin container was the payback for the loan. Upon receiving the tin container, minor showed it to Christopher F. who opened it. When Christopher F. saw the marijuana inside, he asked to purchase some. Minor stated he did not know the tin contained marijuana when he received it. He did acknowledge that when Smith entered the bathroom, minor was in possession of the container.
After the presentation of evidence, the trial court found Count Two was proven and Count One had not been established.
PROCEDURAL ISSUE:
CODE OF CIVIL PROCEDURE SECTION 170.1 MOTION
One of the procedural issues in the case was minor’s motion to disqualify the trial judge pursuant to Code of Civil Procedure section 170.1. The evidence supporting the challenge was developed during the first day of minor’s trial on June 23, 2010. The parties had previously advised the court the case would take approximately one and one-half hours to litigate. Based on the representation, the court scheduled a second hearing later in the day on an unrelated matter. The witnesses for that proceeding were not local. Their attendance had been specially set by the court. The parties in this case were aware of the time schedule issue.
As it became clear that minor’s hearing would not finish within the time allotted, the court attempted to get counsel to stipulate to what the remaining witnesses would testify. In an effort to resolve or summarize testimony, the court criticized both counsel for not respecting their time estimates. At one point, the trial court indicated the evidence already established the nexus between the school property and the presence of marijuana on the campus, rendering further evidence on the issue cumulative. At the time the court expressed its displeasure, the prosecution was still presenting its case and appeared unwilling to abbreviate the presentation of evidence. The court also indicated that if the case was not completed within the original time estimate, it would have to be continued. Neither counsel indicated opposition to this alternative.
The case was recessed because it was not completed within the time scheduled by the parties. The court felt obligated to proceed with the second unrelated matter which had been specially set to accommodate out-of-town witnesses.
In the disqualification motion defense counsel argued the trial court was biased because of remarks made during the hearing regarding the presentation of evidence. Specifically, the defense objected to the efforts by the court to summarize or regulate witnesses’ testimony. Counsel also protested the remark by the court regarding its suggestion that further testimony on the nexus between the location of the marijuana and the school property was cumulative. To the defense, this suggested the court had determined the matter without hearing the case.
These impressions became the basis for a motion to disqualify under Code of Civil Procedure section 170.1. The court responded to the motion with a verified declaration; he answered he was upset by the failure of both sides to comply with time estimates. The court noted also that examination by defense counsel had not focused on what the judge felt was relevant to the prosecution’s case. If defense wanted to complete the hearing in the allotted time, the judge believed it should focus on the prosecution’s proof regarding possession. The court then asked defense if it wished a continuance because the hearing would not finish in time. This was acceptable to counsel. The court’s declaration indicated it was not prejudiced against minor or his counsel, but only concerned about the handling of several cases under noted time constraints. When the defense agreed to the continuance, the court’s concerns were alleviated.
As the statute requires, the ruling on the motion to disqualify was assigned to another judge, specifically, Judge Hyman of Santa Clara County. He reviewed the record in the case, including the statements made by the court during the hearing on June 23. He determined a legal basis for disqualification was not established. Judge Hyman noted the desire by the court to complete the hearing as planned. The exasperations of the court were realized during the prosecution case, not the minor’s presentation. He concluded that once the court realized the hearing could not be completed in a timely fashion, it did what was appropriate—continued the case at the convenience of the parties to another date.
A review of the record suggests the motion was properly decided. Some deference should be given trial courts in handling scheduling difficulties, especially when the court relies on estimates provided by experienced counsel. It is understood that all parties want resolution of their matters. The trial court’s concern about inconvenience to other litigants and their witnesses because of incorrect time assessments by lawyers in the instant case was appropriate. Additionally, the trial court can comment on an examination process he is observing and its apparent misdirection. Expression by a court regarding the weight of evidence presented is not evidence of bias or prejudice—only fair comment on what has taken place at a hearing. (Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d 704, 718.) A statement by a judge regarding the state of evidence is not a legal basis for disqualification. (Code Civ. Proc., § 170.2, subd. (b).) These principles served as the basis for Judge Hyman’s denial of minor’s challenge.
CONCLUSION
The sentence imposed here was a probation sentence without supervision. It was proper. The court found the petition was sustained only on Count Two, possession of marijuana on the school campus, and the evidence supports that determination. The ruling on the motion to disqualify was correct.
After full review of the record, we find no arguable issues and, therefore, affirm the judgment.
We concur: Marchiano, P. J., Banke, J.