Opinion
E084264
08-20-2024
THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent, REGINALD MARRQUISE HOLLAND, Real Party in Interest.
Deputy District Attorney, Philip Stemler, for Petitioner. No appearance for Respondent. No appearance for Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of mandate. David Cohn, Judge. Petition granted. (Super.Ct.No. FSB21001588)
Deputy District Attorney, Philip Stemler, for Petitioner.
No appearance for Respondent.
No appearance for Real Parties in Interest.
OPINION
MENETREZ J.
INTRODUCTION
Petitioners filed a petition for writ of mandate to reverse the trial court's denial of their motion for disqualification pursuant to Code of Civil Procedure section 170.6, subdivision (a)(2). This court notified the parties that we were considering issuing a peremptory writ in the first instance, and invited respondent and real party in interest to respond. (Cal. Rules of Court, rule 8.487(b)(1).) No response was filed. We therefore grant the petition and issue a peremptory writ in the first instance, directing the trial court to vacate its order denying petitioner's motion and to enter a new order granting the motion.
All further statutory citations are to the Code of Civil Procedure unless otherwise noted.
FACTUAL AND PROCEDURAL HISTORY
Petitioner, the San Bernadino County District Attorney's Office (the People), is engaged in the felony prosecution of real party in interest (Holland). Holland was arraigned in April 2021 by Judge Alexander R. Martinez. In May 2023, Judge Ronald M. Christianson conducted Holland's preliminary hearing. Following the preliminary hearing, Holland's matter was assigned for all purposes to Judge Cheryl C. Kersey. Holland's matter proceeded before Judge Kersey for the next five appearances. On September 23, 2023, three future dates were set, all in department S15. All subsequent hearings, with the exception of one, were held before Judge David Cohn in department S15. On June 18, 2024, the parties received a notice of appearance from the superior court, scheduling a hearing for June 28, 2024. On June 20, 2024, Holland filed a motion seeking discovery pursuant to the Racial Justice Act. On June 28, 2024, the People and Holland (through appearance counsel on behalf of retained counsel), appeared before Judge Cohn. Holland's motion was continued by stipulation to August 30, 2024.
On July 8, 2024, the People filed a motion to disqualify Judge Cohn pursuant to Code of Civil Procedure section 170.6. On July 9, 2024, the People received an email from court staff indicating Judge Cohn denied the motion as untimely.
STANDARD OF REVIEW
Where the underlying material facts are not in dispute, we review a trial court's denial of a section 170.6 challenge de novo. (Garcia v. Superior Court (2023) 92 Cal.App.5th 47, 54.)
DISCUSSION
Section 170.6 governs under what circumstances a party may seek to disqualify a judicial officer. Section 170.6, subdivision (a)(2) outlines the three general rules: the 10-day/5-day rule; the master calendar rule; and the all purpose assignment rule. (§ 170.6, subd. (a)(2).) Under the 10-day/5-day rule, if a judge (other than a judge assigned to the case for all purposes) is assigned to hear a matter and the assignment is known at least 10 days before the date set for hearing, the motion shall be made at least five days before that date. Section 170.6 specifically provides, "[t]he fact that a judge, court commissioner, or referee 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 at the time and in the manner herein provided." (Code Civ. Proc., § 170.6, subd. (a)(2); see Depper v. Superior Court (1999) 74 Cal.App.4th 15, 18 [summary revocation of probation at prior hearing did not render subsequent motion to disqualify untimely].)
Here, Holland's matter was assigned to Judge Kersey for all purposes. There is no claim Judge Cohn operates a master calendar department and thus, the 10-day/5-day rule applies. Judge Cohn was assigned to hear Holland's motion no earlier than the day Holland filed the motion (June 20, 2024). Holland's motion was calendared for June 28, 2024, less than 10 days after Judge Cohn was assigned to hear the motion. Therefore, the People were not required to make their section 170.6 motion five days before the hearing date. (§ 170.6, subd. (a)(2).)
The parties appeared on June 28, 2024, and agreed to reset Holland's motion for August 30, 2024, as it was filed too late to comply with the customary 10-day noticed motion requirement. (Cal. Rules of Court, rule 4.111(a).) There is no evidence the People acted in bad faith in seeking continuance of Holland's motion based on the untimely filing. As such, their challenge, filed well before the August 30, 2024 hearing, was timely and should not have been denied. (People v. Richard (1978) 85 Cal.App.3d 292, 298 [suggesting a 5-day window for timeliness following a continuance should only apply when a continuance is sought in good faith].) Thus, the denial was in error. We, therefore, grant the writ petition, and order the trial court to grant the motion.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent superior court to vacate its order denying petitioner's disqualification motion as to Judge Cohn, and to enter a new order granting disqualification and assigning another judge to this case. The temporary stay is dissolved upon issuance of the remittitur.
We concur: RAMIREZ P. J. FIELDS J.