Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F07387
ROBIE, J.
Convicted of numerous crimes and sentenced to an aggregate term of 87 years in prison, defendant Jermaine Robert Blair raises only one contention on appeal: He contends the trial court erred in denying as untimely his peremptory challenge to the trial judge under Code of Civil Procedure section 170.6. Because this contention is not cognizable on appeal from the judgment of conviction, we will affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying defendant’s convictions are not relevant to the only issue defendant raises on appeal. Accordingly, we do not discuss them.
Defendant’s appellate attorney should have done the same, rather than including a statement of facts in the opening brief that runs more than 64 pages.
As far as the procedural background, only the following facts are relevant: On May 31, 2007, the case was assigned out of the criminal master calendar department for trial in front of Judge James Long. The prosecutor filed a peremptory challenge, and the case was reassigned to Judge Timothy Frawley. At the time the reassignment was made, defendant was not present and his attorney did not challenge Judge Frawley.
When defendant and counsel appeared before Judge Frawley the next morning, defense counsel informed the court that defendant wanted to exercise a peremptory challenge. Defense counsel explained that after the case had been assigned to Judge Frawley the previous day, and after he was told to report back the next morning, he went to see defendant and informed defendant of the assignment. Defendant told him not to talk to the judge or do anything until defendant was present, and he complied. Defense counsel argued that “fundamental fairness and due process should allow [defendant] the opportunity to know who the judge is and exercise a challenge personally, which he has tried to do in this case.” The prosecutor agreed, asserting that “in an abundance of caution . . . the [section] 170.6 should probably be granted and not denied based on his lack of opportunity to exercise it at the appropriate time.” The court, however, determined that the challenge was untimely.
The court stayed the matter so defendant could seek appellate review by petition for a writ of mandate, which defendant did, but that petition was denied. (Blair v. Superior Court (June 8, 2007, C055876).)
DISCUSSION
As relevant here, subdivision (a)(1) of section 170.6 provides that “[n]o judge . . . of any superior court of the State of California shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it shall be established as hereinafter provided that the judge . . . is prejudiced against any party or attorney or the interest of any party or attorney appearing in the action or proceeding.” Subdivision (a)(2) provides that “[a]ny party to or any attorney appearing in any action or proceeding may establish this prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury or an oral statement under oath that the judge . . . before whom the action or proceeding is pending or to whom it is assigned is prejudiced against any party or attorney or the interest of the party or attorney so that the party or attorney cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge . . . . If 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.” (We will refer to this latter provision as the master calendar rule.)
Here, defendant’s peremptory challenge to Judge Frawley clearly did not comply with the master calendar rule. Defendant contends, however, that “principles of due process and equal protection mandate that section 170.6 be read to afford a defendant the chance to be heard concerning the court to which his case is to be assigned.” More specifically, he contends the denial of his peremptory challenge as untimely based on the master calendar rule violated his right to due process because “the assignment of the case in master calendar court is a critical stage of the proceedings at which a defendant has a [constitutional] right to be present.” He also contends the application of the master calendar rule to a defendant who, like himself, is in custody and therefore unable to attend the master calendar hearing constitutes a denial of equal protection. Finally, he contends the master calendar rule should not have applied here because the trial court was not a “ready department” under People v. Escobedo (1973) 35 Cal.App.3d 32.
The People contend defendant’s arguments are not cognizable on appeal because “the exclusive means of appellate review of an unsuccessful peremptory challenge motion is a petition for writ of mandate.”
The People are correct. Subdivision (d) of section 170.3 (section 170.3(d)) provides in relevant part that “[t]he determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal.” This provision “prescribes the exclusive means of appellate review of an unsuccessful peremptory challenge” to a trial judge under section 170.6. (People v. Hull (1991) 1 Cal.4th 266, 268; see also Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 1163.)
Relying on People v. Brown (1993) 6 Cal.4th 322, defendant contends the “procedural bar” of section 170.3(d) “does not apply” here “[b]ecause [his] claim is based on a denial of due process and equal protection.” He is mistaken.
In Brown, the defendant moved unsuccessfully to challenge a trial judge for actual bias under section 170.1 and unsuccessfully sought writ review of that determination. (People v. Brown, supra, 6 Cal.4th at pp. 326-327.) Later, on appeal, defendant claimed “he was denied due process because the judge . . . was not impartial.” (Id. at p. 327.) Relying on section 170.3(d), the People asserted defendant’s claim was not cognizable on appeal. (Brown, at p. 333.) The Supreme Court disagreed, stating as follows: “Section 170.3(d) forecloses appeal of a claim that a statutory motion for disqualification authorized by section 170.1 was erroneously denied, and this preclusion applies even when the statutory basis for the motion appears to codify due process grounds for challenging the impartiality of a judge. [Citations.] Nothing in section 170.3(d), however, explicitly insulates a final judgment from appellate attack on the fundamental constitutional ground that the judgment was procured before an adjudicator who was biased.” (Brown, at p. 334.) Thus, “the denial of a statutory judicial disqualification motion is not subject to interlocutory appeal; instead, all litigants who seek to challenge denial of a statutory judicial disqualification motion are relegated to writ review as described in section 170.3(d).” (Brown, at p. 335.)
Defendant tries to bring his appeal within the ambit of Brown by asserting that his claim is not “confined to the narrow statutory issue of whether the motion to disqualify was timely filed,” but instead “addresses the broader issue that the selection of the trial judge is a critical stage in the proceedings, and that due process therefore requires that the procedure for selecting a trial judge must permit a defendant to at least be informed of the identity of his adjudicator while a peremptory challenge could still be timely filed.” We are not persuaded.
Unlike the defendant in Brown, defendant has not asserted on appeal the violation of a constitutional right -- the right to an unbiased judge -- that exists independently of the statutes governing judicial disqualification in California. Although his arguments draw upon constitutional principles of due process and equal protection, the essence of his claim on appeal is still that the trial court erred in denying his peremptory challenge under section 170.6 . Our Supreme Court has made it clear, however, that “section 170.3(d) prescribes the exclusive means of appellate review of an unsuccessful peremptory challenge.” (People v. Hull, supra, 1 Cal.4th at p. 268.)
Because defendant’s appeal is, at heart, nothing more than a challenge to the trial court’s denial of his peremptory challenge under section 170.6, defendant is not entitled to any appellate review beyond that which he received already when he unsuccessfully sought a writ of mandate immediately following the trial court’s ruling.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., NICHOLSON, J.