Opinion
Review Granted Feb. 28, 1991.
Previously published at 226 Cal.App.3d 590, 233 Cal.App.3d 192
Millard A. Murphy, Davis, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Sacramento, Arnold O. Overoye, Asst. Atty. Gen., Shirley A. Nelson, Robert R. Anderson, and Louis Vasquez, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
THAXTER, Associate Justice.
We hold here that appellant's attack on a lower court order denying her peremptory challenge to the trial judge under CODE OF CIVIL PROCEDURE SECTION 170.6 is not cognizable because of section 170.3, subdivision (d). Since that attack forms the sole basis for this appeal, we will affirm.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
STATEMENT OF CASE
Appellant Alma Mae Hull was charged by information with sale of cocaine base (Health & Saf.Code, § 11352). She waived arraignment and pleaded not guilty.
A pretrial conference was held before Judge Pierson on October 12, 1989. Jury trial was confirmed for October 16 at 9:30 a.m. On October 13, Judge Rose, presiding over the "department setting conference," assigned the case for trial in Judge Stone's courtroom. On October 16, Presiding Judge Cantwell granted a continuance; pretrial conference was set for October 26, and trial for October 30.
At the second pretrial conference, held before Judge Azevedo, the trial date of October 30 was confirmed. Appellant's trial counsel was not present but appellant was. On October 27, Judge Cantwell presided over a "department setting conference" that resulted in the trial being referred to the courtroom of Judge Pierson. Neither appellant nor her trial counsel were present.
It appears that on October 30, appellant moved before Judge Cantwell to disqualify Judge Pierson (§ 170.6). Judge Cantwell denied the motion as untimely.
Appellant proceeded to trial before Judge Pierson, waiving a jury. After submission of the case, Judge Pierson found appellant guilty. He also found true an alleged prior conviction, and further found that appellant was on her own recognizance pending trial on still another charge at the time of the offense.
Because the only issue raised on appeal is unrelated to the facts of the case, we omit a statement of facts.
Sentence was imposed by Judge Pierson on November 27, 1989.
DISCUSSION
The order denying appellant's section 170.6 challenge is not appealable.
The sole issue raised by appellant is that the trial court erred in denying her peremptory challenge to Judge Pierson under section 170.6. However, section 170.3, subdivision (d) states as follows:
Section 170.6, subdivision (1) provides a mechanism for the disqualification of trial judges where it is established that "the judge ... is prejudiced against any party or attorney...."
"The 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 sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding."
If section 170.3, subdivision (d) applies to orders arising under section 170.6, such orders are not appealable.
Two reported appellate decisions have reached directly contrary results on the same issue facing us. In Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 241 Cal.Rptr. 818, the Second District squarely held that the 10-day limitations period for seeking writ review under section 170.3, subdivision (d), did not apply to orders determining peremptory challenges under section 170.6. Although the question of appealability was not presented in Woodman, the court's reasoning on the 10-day limitation issue applies equally to all of the provisions of section 170.3, subdivision (d), including the "not an appealable order" provision. Two years later, however, the Fourth District explicitly disagreed with Woodman, holding that "section 170.3, subdivision (d) prescribes the exclusive avenue of appellate relief to a party who is aggrieved by the allegedly erroneous denial of his motion to disqualify a judge ... [and] the 10-day limitation is applicable to any motion to disqualify a judge, whether the challenge is peremptory or 'for cause....' " (Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 1159-1160, 260 Cal.Rptr. 99, fn. omitted, emphasis in original.)
Our analysis begins with Woodman. The court there looked at the legislative history behind the comparatively recent section 170.3 and found it "abundantly clear that the 1984 revision of the challenge for cause statute, of which [section 170.3, subdivision (d) ] is part, was to have no effect on the peremptory challenge statute [section 170.6]." (196 Cal.App.3d at pp. 413-414, 241 Cal.Rptr. 818, emphasis added.)
Interestingly, People v. Jenkins (1987) 196 Cal.App.3d 394, 241 Cal.Rptr. 827 was decided on the same day by the same court as Woodman. Presiding Justice Woods authored each opinion. Jenkins held that section 170.3, subdivision (d) makes mandamus the sole appellate remedy for review The Guedalia court relied on People v. Jenkins, supra, and disagreed with Woodman's legislative history analysis.
"Our review of that same legislative history ... reveals no intention to exclude section 170.6 determinations from the appellate review provisions enacted by the Legislature. While Woodman placed great significance on the legislative statement that the 1984 bill 'would not amend that section [i.e., section 170.6]' (196 Cal.App.3d at p. 407, 241 Cal.Rptr. 827, italics omitted), our review of the context of that statement convinces that the reference simply stated the obvious: that the 1984 legislation did not intend to abrogate the substantive right to (or the trial court procedures for interposing) a peremptory challenge, but was instead directed toward substantive and trial court procedural reforms of 'for cause' challenges. Our conclusion that appellate relief limitations are applicable to peremptory challenges does not contravene the legislative history, since application of appellate relief limitations leaves untouched the substantive and trial court procedural aspects of peremptory challenges." (211 Cal.App.3d at p. 1161, 260 Cal.Rptr. 99.)
The Guedalia court went on to discuss the policies underlying section 170.3, subdivision (d), identifying them as "judicial economy" and "fundamental fairness." The court noted that the statute "fosters judicial economy by eliminating the waste of time and money which inheres if the litigation is permitted to continue unabated, only to be vacated on appeal because the subsequent rulings and judgment were declared 'void' by virtue of the erroneously denied disqualification motion." (Id. at p. 1162, 260 Cal.Rptr. 99.) Fundamental fairness is promoted because the party complaining of the disqualification ruling must challenge it immediately and is denied the windfall of waiting to see if the ultimate judgment is favorable, in which case he reaps the benefit of that outcome, or attacking an unfavorable judgment as void, in which case he gets "two bites at the apple." (Ibid.) The court concluded:
"The twin policies promoted by section 170.3, subdivision (d) are equally compelling whether the challenge is 'for cause' or is peremptory. We perceive no reason or basis for allowing these policies to be thwarted by exempting peremptory challenges from the mandatory provisions of section 170.3, subdivision (d)." (Id. at p. 1163, 260 Cal.Rptr. 99.)
Having thus found no reason to distinguish between the two, Guedalia held "that section 170.3, subdivision (d) is the exclusive appellate remedy for any motions to disqualify a judge, including peremptory challenges pursuant to section 170.6." (Ibid.)
Although not holding that section 170.3 is the exclusive appellate remedy for denial of a section 170.6 motion, we observed in Le Louis v. Superior Court (1989) 209 Cal.App.3d 669, at footnote 1, 257 Cal.Rptr. 458, that "[a] petition for writ of mandate and/or prohibition is the appropriate procedural device to review the denial of a challenge under Code of Civil Procedure section 170.6. (See Code Civ.Proc., § 170.3, subd. (d); ...)"
We find the Guedalia court's reasoning persuasive and elect to follow it. In our view the phrase "disqualification of a judge" in subdivision (d) of section 170.3 should not be read so narrowly as to exclude challenges under section 170.6. In addition to the reasons expressed in Guedalia, we point out that section 170.6, subdivision (7) specifically states that "Nothing in this section shall affect or limit the provisions of Section 170 ... and this section shall be construed as cumulative thereto." Clearly, then, sections 170.6 and 170 were meant to be read together. Section 170 states that "A judge has a duty to decide any proceeding in which he or she is not disqualified." If that provision were not applicable to judges challenged by a section 170.6 motion, then under section 170 such judges continue to have a duty to decide the proceeding despite the motion. This cannot be. Sections 170 and 170.6, read together, must be interpreted as meaning that a judge properly challenged under section 170.6 is "disqualified" as the term is employed in section 170.
Section 170 and section 170.3 were enacted together. (Stats.1984, ch. 1555, §§ 2, 7.) If "disqualified" has a given meaning when used in one of the statutes, it presumably shares that meaning in the other.
"It is, however, 'an established rule of statutory construction that similar statutes should be construed in light of one another.... "[A]pplication of the rule that statutes in pari materia should be construed together is most justified, and light from that source has the greatest probative force, in the case of statutes relating to the same subject matter that were passed at the same session of the legislature, especially if they were passed or approved or take effect on the same day...." ' (People v. Caudillo (1978) 21 Cal.3d 562, 585 [146 Cal.Rptr. 859, 580 P.2d 274] [ ].) When as in the present case both statutes are part of the same bill, enacted and chaptered together, the rule requiring the courts to reconcile the statutes is even more compelling, ..." (International Business Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923, 932, 163 Cal.Rptr. 782, 609 P.2d 1.)
This being so, it follows that when subdivision (d) of section 170.3 speaks of the "determination of the question of the disqualification of a judge," it employs the term "disqualification" as that word is used in section 170. As section 170's use of "disqualification" encompasses peremptory challenges, section 170.3, subdivision (d)'s limit on appellate review applies to a section 170.6 peremptory challenge as well as a challenge for cause.
We recognize that some courts have, without discussion, ignored the question of section 170.3, subdivision (d)'s effect on review of section 170.6 rulings. For instance, in People v. Hedgecock (1988) 214 Cal.App.3d 1082, 247 Cal.Rptr. 404 (reversed on other grounds in (1990) 51 Cal.3d 395, 272 Cal.Rptr. 803, 795 P.2d 1260), the Fourth District went directly to the merits of the timeliness issue, with no comment on the fact that the issue was being addressed on an appeal after judgment. (Id. 214 Cal.App.3d at pp. 1160-1162, 247 Cal.Rptr. 404.) We note that in that case, however, the defendant unsuccessfully sought writ review in the first instance. (Id. at p. 1160, 247 Cal.Rptr. 404.)
In Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 255 Cal.Rptr. 453, the First District reached the merits of a section 170.6 denial without discussing the appropriateness of appellate relief. (Id. at p. 729, 255 Cal.Rptr. 453.) Nothing in the opinion indicates that pretrial writ relief was sought.
In Conservatorship of Durham (1988) 205 Cal.App.3d 548, 252 Cal.Rptr. 414, the Second District likewise addressed the merits of the denial of a peremptory challenge in an appeal, with no discussion of section 170.3, subdivision (d). (Id. at pp. 553-554, 252 Cal.Rptr. 414.)
Significantly, we find no reported decisions on direct appeals dealing with section 170.6 motions postdating Guedalia.
Appellant urges us to treat her appeal as a timely filed petition for writ of mandate. She offers three arguments in support of her request.
First, appellant claims that as a criminal defendant she is "entitled to a liberal construction of the remedial statute and to the benefit of every ambiguity in the language of the statute." We, however, find no ambiguity in the statute. Appellant cites no authority that the statute should be interpreted differently in criminal cases. The peremptory challenge procedure is expressly made applicable to criminal actions (§ 170.6, subd. (1)). People v. Jenkins, supra, 196 Cal.App.3d 394, 241 Cal.Rptr. 827, Second, appellant asserts that the trial court did not inform her of "the necessity of appealing the denial of her motion for disqualification in a separate mandamus petition." While the record bears out that statement, appellant does not rely on any authority imposing such a duty on the trial court. California Rules of Court, rule 250 requires a sentencing court to advise the defendant of his or her right to appeal from the judgment and of the procedures for doing so. The court below fully complied with rule 250.
Finally, appellant contends she is entitled to appellate relief because she did not receive effective assistance of counsel below since her trial counsel did not seek timely writ review of the order denying her peremptory challenge. A criminal defendant making such a claim has the burden of establishing, based on the record on appeal, and on the basis of facts, not speculation, that trial counsel rendered ineffective assistance. (People v. Mattson (1990) 50 Cal.3d 826, 876-877, 268 Cal.Rptr. 802, 789 P.2d 983.) Here appellant simply asks us to speculate on why a timely writ petition was not filed. We will not do so. She has not met her burden.
DISPOSITION
Because the only issue raised on appeal is validity of an order not reviewable on appeal, we affirm the judgment.
MARTIN, Acting P.J., and STONE (WM. A.), J., concur.
"Any party ... 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 ... is prejudiced against any such party ... so that the party ... cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge, ..." (§ 170.6, subd. (2).)