Opinion
B206570
4-23-2009
THE PEOPLE, Plaintiff and Respondent, v. PHILIP LEE, Defendant and Appellant.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Philip Lee appeals from the judgment entered following a contested hearing in which he was found to have violated probation. The probation had been imposed upon defendants negotiated plea of no contest to defrauding an innkeeper and his admission that he had sustained a prior felony conviction on which he had served a prison term. Defendant contends that his trial counsel rendered ineffective assistance in failing to seek disqualification of the trial judge. We affirm.
BACKGROUND
Defendants conviction was based on an incident that occurred the night of June 23, 2005, when defendant ran up a $524 tab at a bar in Los Angeles, refused to pay, and walked out. His plea agreement called for a four-year suspended sentence and a grant of probation.
On January 24, 2008, the matter was sent out from the master calendar court (Los Angeles County Superior Court, department 100) to department 128 (Hon. Marsha N. Revel, judge presiding) for various matters, including a probation violation hearing. As the proceedings began, Judge Revel stated: "Before we get started, Im just indicating that a child of mine is employed as a deputy district attorney. That has nothing to do with your case. It doesnt require a waiver or consent. I just let everybody know."
Evidence was then presented that on September 20, 2006, defendant assaulted a customer in a fast food restaurant. Defendant was found in violation of probation and sentenced in accordance with the plea agreement to four years in state prison.
DISCUSSION
"To show ineffective assistance of counsel, defendant has the burden of proving that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been different. [Citations.]" (People v. Kelly (1992) 1 Cal.4th 495, 519-520; accord, People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) "Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. In all other cases the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence [outside] the record may be taken to determine the basis, if any, for counsels conduct or omission. [Citation.]" (People v. Fosselman (1983) 33 Cal.3d 572, 581-582; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Defendant contends that based on Judge Revels disclosure regarding her child, trial counsel "received a clear warning that the judge might not be impartial" and that counsel should have acted on that warning. We disagree.
A peremptory challenge under Code of Civil Procedure section 170.6 would have been untimely because such a challenge is required to be made in the master calendar court before the matter is sent out for trial. (Code Civ. Proc., § 170.6, subd. (a)(2).) Nor was there any indication that Judge Revels child was participating in the proceedings, as required for disqualification under Code of Civil Procedure section 170.1, subdivision (a)(5). In addition, defendant has failed to show the appearance of impropriety that would justify disqualification here, and by extension disqualification in all criminal matters of any trial judge whose close relative is a prosecutor. (Cf. Flier v. Superior Court (1994) 23 Cal.App.4th 165, 172.) And in any event, defense counsel may have been favorably disposed to having Judge Revel hear the case and consequently made a tactical decision to forgo any effort to disqualify her. Defendants claim of ineffective assistance of trial counsel must therefore be rejected.
Code of Civil Procedure, section 170.6, subdivision (a)(2), provides in pertinent part: "If [a motion for disqualification is] directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial."
DISPOSITION
The judgment is affirmed.
We concur:
ROTHSCHILD, J.
TUCKER, J.