Opinion
G052933
02-28-2017
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ALEKSANDAR APOSTOLOVIC, Real Party in Interest.
Tony Rackauckas, District Attorney, Stephan Sauer and Brian F. Fitzpatrick, Deputy District Attorneys, for Petitioner. Schonbrun Seplow Harris & Hoffman and Paul L. Hoffman; Erwin Chemerinsky for Respondent. Sharon Petrosino, Public Defender, David Dworakowski, Assistant Public Defenders, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15ZF0002) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Richard M. King, Judge. Petition granted; writ issued. Tony Rackauckas, District Attorney, Stephan Sauer and Brian F. Fitzpatrick, Deputy District Attorneys, for Petitioner. Schonbrun Seplow Harris & Hoffman and Paul L. Hoffman; Erwin Chemerinsky for Respondent. Sharon Petrosino, Public Defender, David Dworakowski, Assistant Public Defenders, for Real Party in Interest.
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This court recently held that Solberg v. Superior Court (1977) 19 Cal.3d 182 (Solberg) precluded California courts "from assessing the motivations and weighing the consequences of . . . peremptory challenges as a basis for denying a [Code of Civil Procedure] section 170.6 motion on separation of powers grounds." (People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892, 901 (Tejeda).) We ordered the issuance of a peremptory writ of mandate directing respondent court to vacate its order denying a Code of Civil Procedure section 170.6 (section 170.6) motion filed by the Orange County District Attorney (district attorney). (Id. at p. 910.) On November 30, 2016, our Supreme Court denied petitions for review filed in Tejeda.
This case is on all fours with Tejeda. Indeed, this petition for writ of mandate was one of four petitions filed alongside Tejeda on December 17, 2015. The petitions all argued that respondent court erred by denying section 170.6 motions to disqualify Judge Thomas Goethals. The petitions all referenced the same lengthy respondent court order, which justified the denial of petitioner's section 170.6 motions on separation of powers grounds. (See Tejeda, supra, 1 Cal.App.5th at pp. 896-899.) We sought informal briefing in all five cases, but issued an order to show cause solely in Tejeda.
The intent of selecting a single petition for an order to show cause (rather than consolidating the cases and deciding all five by a single opinion) was to avoid unnecessarily delaying five criminal cases when one could do the job. It seemed plausible that the parties would be content to resolve their dispute in Tejeda, and could move forward with proceedings in the other matters (before Judge Goethals or otherwise). Obviously, this scenario did not come to pass in this case. --------
Despite the issuance of our Tejeda opinion, respondent court in this matter did not voluntarily change its order denying the district attorney's section 170.6 motion. Once the decision in Tejeda was final, this court gave notice (both on December 8, 2016, and January 13, 2017) that it was considering issuance of a peremptory writ of mandate in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) After all, this court had just decided an identical issue in Tejeda. This court offered all parties the opportunity to respond to its notice and offered respondent court the opportunity to consider changing its order. (See Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233.)
Respondent court did not change its order. By a letter brief filed on February 14, 2017, respondent court argues that circumstances have changed since this court issued its Tejeda opinion. Respondent court cites another recent opinion of this court in which an order recusing the entire district attorney's office in a particular case was affirmed. (People v. Dekraai (2016) 5 Cal.App.5th 1110.) Respondent court's brief asserts that the question presented now is "whether the use of [s]ection 170.6 by a [d]istrict [a]ttorney to blanket paper a judge is permissible when it follows the judge correctly finding serious misconduct by the [d]istrict [a]ttorney." Respondent court requests that this court issue an order to show cause to explore whether these new circumstances merit a different result than that reached in Tejeda.
As made clear in Tejeda, however, the conduct of the district attorney is beside the point. (Tejeda, supra, 1 Cal.App.5th at pp. 904-907.) We explained that "nothing in Solberg leaves room for the consideration of evidence or a different result if the evidence is substantial enough." (Id. at p. 907.) "[C]ourts should not conduct evidentiary hearings (or otherwise marshal evidence . . . ) to determine the extent of the abuses committed by parties utilizing section 170.6 challenges. Instead, courts should grin and bear this 'reasonable—and hence valid—accommodation of the competing interests of bench, bar, and public on the subject of judicial disqualification.'" (Ibid.)
Petitioner is clearly entitled to relief. "[N]o purpose could reasonably be served by plenary consideration of the issue . . . ." (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Thus, it is appropriate here to issue a peremptory writ of mandate in the first instance. (Ibid.)
DISPOSITION
Let a peremptory writ of mandate in the first instance issue directing respondent court (1) to vacate its order denying petitioner's section 170.6 motion and (2) to issue a new and different order assigning this case to a judge other than Judge Goethals.
O'LEARY, P. J. WE CONCUR: ARONSON, J. IKOLA, J.