Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. MA031941, Hayden Zacky and Thomas R. White, Judges.
Donald R. Tickle, 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, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Edward Roy Patten appeals from the court’s judgment revoking his probation after the court disregarded an earlier order made by a different judge to bifurcate the probation revocation hearing. We reverse and remand for further proceedings.
FACTS AND PROCEEDINGS
In 2005, appellant Edward Roy Patten pleaded no contest to committing assault with a deadly weapon and admitted one prior conviction and prison term. The court imposed a 12-year suspended sentence and placed appellant on five years’ formal probation. In June 2009 while still on probation, appellant got involved in a fistfight with Albert Otawka while they waited to enter a homeless shelter. The People charged appellant with battery causing great bodily injury, and the superior court revoked his probation.
Appellant’s probation violation hearing was set for August 21, 2009. Appearing before Judge Hayden Zacky one week earlier on August 14, appellant told the court that he wanted to represent himself because his defense counsel had not contacted certain defense witnesses. Cautioning appellant about the dangers of self-representation, Judge Zacky told appellant the August 21 hearing was going to proceed as scheduled. Judge Zacky explained:
“We already have a probation violation hearing date set for August 21st, which is a week from today. Witnesses were already ordered back for that hearing. The hearing will be going forward that day. [¶] Do you understand that. [¶] [APPELLANT:] No, I didn’t understand that. I’d like to request the court for a continuance. [¶] [COURT:] I am just telling you right now, I am not going to grant a continuance. And I’ll tell you why....”
Judge Zacky then explained that postponing the hearing inconvenienced victim Otawka, who, having already appeared at several hearings, seemed at risk of refusing to appear again if the probation violation hearing were continued. Appellant replied:
“Your honor, when I was represented by [defense counsel], I notified him of my witnesses that could potentially exonerate me.... [¶]... [¶]... And he has failed to contact the witnesses. I notified him plenty of time beforehand where they were in custody and available, and he let them slip away. I did give him contact numbers for these two witnesses, and no result.”
In response to appellant’s plea that his defense counsel had not prepared for the probation violation hearing, the court proposed to bifurcate the hearing to give appellant more time, if needed, to contact his witnesses. The court stated:
“Well, let me tell you, one alternative may be this. Is that next Friday [the day of the probation violation hearing], the People will be calling their victim and witnesses. And if you need a little more time to contact defense witnesses, I will allow you, you know, a reasonable amount of time to bring them in. So we can bifurcate the hearing. All right? [¶] [APPELLANT:] Okay. [¶] [COURT:] So do you understand that? [¶] [APPELLANT:] Yes. [¶]... [¶] [COURT:] So we are going forward with the hearing next Friday with the People’s case. Okay? [¶] [APPELLANT:] Yes.”
One week later on August 21, 2009, the probation violation hearing was called before Judge Thomas White; the record does not reveal why Judge White heard the matter instead of Judge Zacky. The hearing began with the People presenting their case-in-chief, consisting of testimony by victim Otawka and appellant’s probation officer. Otawka testified appellant began a “heated argument” with him and assaulted him without provocation while they waited to enter a homeless shelter. The probation officer testified about appellant’s incomplete compliance with his probation conditions.
After the People completed their case-in-chief, appellant presented a written motion for a 30- to 60-day continuance to give his investigator more time to contact witnesses on appellant’s witness list. Deeming the motion untimely, Judge White stated that Judge Zacky had already denied a continuance. Judge White stated: “The motion is not considered timely. I see that Judge Zacky reviewed a previous request for continuance. It was not granted.” Appellant replied that Judge Zacky one week earlier had promised he would entertain appellant’s request for a continuance during the probation violation hearing. Appellant informed Judge White: “Judge Zachary (sic) stated to me that the reluctance of the [victim] coming to court was at issue, and he would hear my motion for continuance on today’s date.” The court responded: “Okay. I have already ruled on the motion. I have denied the motion.”
Appellant thereafter proceeded to put on his defense. Appellant testified that Otawka started the brawl by challenging him to fight. Appellant also called a character witness who testified Otawka had a belligerent reputation, stating Otawka was “an alcoholic that likes to pick fights with people and act like an idiot.” At the close of evidence, the court found appellant violated his probation. The court remanded appellant to state prison to serve his 12-year sentence. This appeal followed.
DISCUSSION
A. Error to Disregard Bifurcation Order
A trial judge has the authority to control the order of proceedings. Under that authority, a judge may bifurcate a matter. (People v. Ruiloba (2005) 131 Cal.App.4th 674, 690-691; see, e.g., Pen. Code, §§ 1044, 1093, 1094; Evid. Code, § 320.) Here, Judge Zacky ordered bifurcation of the People’s case-in-chief from appellant’s presentation of his defense. While refusing to inconvenience the victim by delaying the People’s presentation of their evidence, Judge Zacky ruled he would give appellant more time to contact defense witnesses if appellant needed extra time after the People completed their case – thus Judge Zacky’s remark that “we are going forward... with the People’s case” when he ruled: “[N]ext Friday [the day of the probation violation hearing], the People will be calling their victim and witnesses. And if you need a little more time to contact defense witnesses, I will allow you, you know, a reasonable amount of time to bring them in. So we can bifurcate the hearing.” (Italics added.) The trial court asked appellant, “All right?” Appellant responded “Okay.” There was no objection by the People.
In its supplemental brief, the Attorney General initially argues that Judge Zacky did not order bifurcation and at most he ruled that he would entertain at the probation violation hearing a request for bifurcation and continuance, but intended to put appellant to the burden of showing good cause for a continuance. (See Pen. Code, § 1050, subd. (e) [good cause must be shown for continuance].) Later, though, respondent says: “The reporter’s transcript on appeal arguably supports a conclusion that on August 14th, Judge Zacky ordered bifurcation.” In our view, Judge Zacky’s express use of the word “bifurcate” cannot be construed as anything other than an order for bifurcation under the previously cited statutory and case law. Judge Zacky initially denied the request for continuance but then raised bifurcation sua sponte as an “alternative” and asked appellant if that was “All right?” Appellant responded “Okay.” In order to accommodate the People’s concern about the availability of its only witness and appellant’s concern that his attorney had not subpoenaed witnesses, Judge Zacky bifurcated the People’s case-in-chief from appellant’s presentation of his defense. His reference to proceeding on August 21 “with the People’s case” was a ruling that appellant’s request to continue the presentation of his defense case to another day would be granted for the asking.
Judge Zacky having ordered bifurcation, Judge White did not have the authority to ignore that order one week later during the probation revocation hearing. (People v. Riva (2003) 112 Cal.App.4th 981, 991; In re Alberto (2002) 102 Cal.App.4th 421, 426-428.) Respondent does not disagree with this rule of law. Instead, respondent contends that the general rule against one trial judge overruling another does not apply here because Judge White’s disregard of Judge Zacky’s bifurcation order was not willful. Respondent’s contention is factually fair because Judge White seemed unaware of the bifurcation order when he referred to Judge Zacky’s having denied appellant’s “previous request for continuance.” Respondent fails, however, to parlay Judge White’s seemingly innocent misapprehension of the court record with authority that the oversight was, because of its innocence, lawful. “[B]ecause a superior court is but one tribunal, an order ‘ “ ‘ “made in one department during the progress of a cause can neither be ignored nor overlooked in another department....” ’ ” ’ [Citation.]” (Alberto, at p. 428.) “For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge [impermissibly] places the second judge in the role of a one-judge appellate court.” (Id. at p. 427.) The second judge’s state of mind is legally irrelevant to the rule’s operation.
Respondent’s “lack of willfulness” argument fits more appropriately into its next point which is that appellant waived Judge White’s error by failing to object to Judge White’s disregard of Judge Zacky’s bifurcation order. Respondent notes that appellant’s exchange with Judge White focused on appellant’s request for a “continuance” and did not mention “bifurcation.” Thus, according to respondent, appellant did not preserve for appeal arguments relying on bifurcation. An objection need not be absolutely precise so long as it places the issue sufficiently before the court to alert the judge to the gist of the disputed point. (People v. Scott (1978) 21 Cal.3d 284, 290.) The record shows that appellant objected to Judge White’s rejection of appellant’s request for more time to contact defense witnesses. Appellant told Judge White after the prosecution had rested “Judge Zachary (sic) stated to me that the reluctance of the witness coming to court was at issue, and he would hear my motion for continuance on today’s date.” Appellant’s objection thus directed Judge White’s attention to the matter at hand. Neither a defendant’s lack of legal sophistication and precision, nor a trial judge’s unfamiliarity with the court record, authorizes one trial judge to ignore another trial judge’s orders. (Alberto, at pp. 427-428 [one judge may not “overlook” another judge’s order]; accord, People v. Bob (1946) 29 Cal.2d 321, 325 [“ ‘the mere fact that the objection could have been made in better form will not justify a refusal to consider it, where the intention of the defendant could not be misunderstood’ [Citation.]”].) From those principles, we conclude appellant preserved his objection to Judge White’s error in disregarding Judge Zacky’s bifurcation order.
B. Error Was Prejudicial
At the probation revocation hearing, victim Otawka testified appellant attacked him; appellant testified, on the other hand, that Otawka was the aggressor. In support of his defense, appellant offered character evidence of Otawka’s reputation for aggression. No independent eyewitnesses testified for either side. Thus, the hearing boiled down to a credibility contest between appellant and Otawka. Because appellant’s witness list named persons whom appellant asserted were eyewitnesses to the fight – the witness he did call at the hearing was not percipient – his witnesses might bolster his defense by turning the hearing into more than a credibility contest between only him and Otawka. Judge White’s unknowing disregard of the bifurcation order prejudiced appellant because it prevented appellant from presenting those favorable witnesses.
Respondent contends Judge White’s disregard of Judge Zacky’s bifurcation order did not prejudice appellant because Judge White found that, besides assaulting Otawka, appellant violated other probation terms. Thus, appellant’s remand to state prison to serve his 12-year sentence did not rest solely on his having attacked Otawka. We do not find the contention persuasive because, despite appellant’s other probation violations – failure to complete his 26-week anger management program in 2005, a 2007 disorderly conduct conviction for public intoxication, and a cite-and-release arrest for being drunk when he assaulted Otawka. Neither appellant’s probation officer nor the prosecution moved to revoke appellant’s probation until his arrest for assaulting Otawka, making the assault the straw that broke the camel’s back. If the court had found appellant did not assault Otawka but did commit other violations, we cannot say it is reasonably probable the court would have nevertheless remanded appellant to state prison.
DISPOSITION
The judgment finding appellant violated his probation is reversed and the matter is remanded for a rehearing to afford appellant a reasonable opportunity to present witnesses in his defense.
WE CONCUR: FLIER, J., GRIMES, J.