Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 202537.
McGuiness, P.J.
Petitioner challenges a criminal division case assignment procedure instituted by supervising judge Charles F. Haines and presiding judge James McBride.
After a September 2008 pretrial conference and subsequent discussions and negotiations, Judge Harold E. Kahn indicated that he would approve petitioner Jonathon Wells’ guilty plea and sentence him to 13 years in prison. At the plea hearing, Wells asked to continue the hearing so that his mother could discuss drug treatment programs with the District Attorney. Judge Kahn indicated that Wells could plead at a later time. However, the case was later assigned to another department and that judge informed the parties that Judge Kahn was not authorized to approve pleas and that she, being so authorized, would not approve the 13-year plea offer. Despite the parties’ request, the case was never reassigned to Judge Kahn. Petitioner maintains that this failure to reassign his case, thus removing the 13-year plea option, was pursuant to an improperly adopted local rule and infringed on the power of a sitting superior court judge. We disagree, and deny the petition for a writ of mandate and/or prohibition.
BACKGROUND
On August 4, 2006 the People charged petitioner via a felony complaint with second-degree robbery and unlawful evasion of a police officer. They also alleged 14 prior “strike” convictions, 14 five-year sentencing enhancements and 15 one-year enhancements, potentially exposing him to a sentence of 85 years to life. On July 31, 2007, after a preliminary hearing, petitioner was held to answer. On August 13, 2007, the People filed an information, and the next day, petitioner was arraigned and pled not guilty to each count and denied all the allegations. At that time his case was continued to Department 22, Judge Haines presiding, for both trial and pretrial proceedings. The pretrial conference was, however, transferred to Department 25 and no disposition was reached at that time. A trial date was then set in Department 22. In January 2008, upon petitioner’s motion, the case was continued and both pretrial and trial were set in Department 22. On April 7, 2008 Judge Teri L. Jackson conducted a pretrial conference during which the prosecution offered to accept a plea that included a 20-year sentence, the defense requested a 12-year sentence, and Judge Jackson indicated she would consider an 18-year sentence. Trial was set in Department 22. However, petitioner made a new request to continue the trial, so again both trial and pretrial were continued to the same department.
On August 5, after the filing of a First Amended Information which merely corrected a spelling error, the court continued the pretrial conference to August 27 in Department 26, and continued the trial to October 3 in Department 22. Again at petitioners request, the pretrial conference was continued, this time until September 17; thus, the pretrial conference was set in Department 26, while the trial remained calendared in Department 22. However, due to Judge Haines temporary absence from Department 26 on September 17, Judge Harold E. Kahn presided over the pretrial conference. At the conference, the prosecution offered a sentence of 35 years to life, while the defense sought a 12-year sentence. Judge Kahn indicated he would consider a package of information prepared by the defense about why he should strike the priors, which would yield a sentence of 12 to 16 years.
On October 2, 2008, Judge Kahn sent counsel an email indicating he would approve a plea providing for a 13-year sentence. He calculated that sentence as three years for the second degree robbery, with a concurrent sentence for the evasion charge, and two consecutive five-year terms for the two non-strikable priors, and striking all the remaining priors. On October 22, 2008, the plea hearing and trial were set before Judge Kahn. The trial was continued until November 3, 2008. When the parties appeared before Judge Kahn for the plea hearing, petitioner requested that his mother first be permitted to speak with the District Attorney about his need for drug treatment before any plea was taken. Judge Kahn agreed and indicated that the plea offer would remain open and that the parties should contact him if petitioner wished to accept the plea any time before trial. Judge Kahn, who was then sitting in Department 21, nonetheless entered a minute order that day returning the case to Department 22. Petitioner moved to continue the trial, which was subsequently set for April 17, 2009. When Judge Haines continued the trial to April 17, he also set an April 8, 2009, pretrial conference in Department 23, before Judge Breall.
A meeting with the District Attorney was scheduled for March 2009, but was cancelled due to a death in the District Attorney’s family.
At the April 8 pretrial conference before Judge Breall, the parties informed her that there was an open plea offer from Judge Kahn that petitioner intended to take, thus obviating the need for another pretrial conference. The April 8 minute order entered by Judge Breall, however, indicates that the case was on calendar for a pretrial conference, that the petitioner’s appearance was waived, and that the case was continued for jury trial on April 17, 2009, in Department 22. Petitioner states, however, that at the April 8 pretrial conference Judge Breall indicated that she was the only judge who could make pretrial offers and that Judge Kahn’s earlier open plea offer was not valid. Judge Breall further indicated she would not strike the prior strikes, and would approve a plea offer for 20 years in prison.
According to defense counsel’s declaration, counsel contacted Judge Kahn to confirm that his offer remained open and to arrange for a date for him to accept the plea. While counsel was in Judge Kahn’s chambers, Judge Kahn confirmed by telephone that the District Attorney would accept the 13-year plea. Judge Kahn then telephoned Judge Haines to advise him that Judge Kahn’s plea offer remained open and that he would be sitting at the Hall of Justice the following week and could take the plea at that time. According to the petition, Judge Haines informed Judge Kahn of a new “rule” announced by Presiding Judge McBride that only Judge Breall or Judge Haines could accept criminal pleas. District Attorney Coleman and defense counsel Burke then met with Judge Haines to discuss the matter. At that meeting Judge Haines indicated he was concerned about “forum shopping” in order to secure a more lenient sentence.
After numerous continuances and a successful challenge to Judge Jackson, to whom the case had briefly been assigned for all purposes, on September 2, 2009, the case was reassigned for all purposes to Judge Anne-Christine Massullo in Department 13. At a September 3 hearing, District Attorney Coleman moved to dismiss all but one of the prior strikes alleged in the First Amended Information. According to petitioners counsel, “Upon information and belief, Judge Massullo promptly telephoned Judge Breall for consultation, and then denied the DAs motion to dismiss the strike priors.” The following day, Judge Massullo issued an Order Re: Briefing and Hearing, in which she indicated that “amendment would have the same effect as dismissing the priors.” At a subsequent hearing on September 10, the request to dismiss the prior strikes was argued and submitted, the court granted the motion, and the Second Amended Information was filed that day. Thus, petitioner’s exposure was effectively reduced to 12 to 16 years.
On September 8, 2009, petitioner filed his writ petition and related stay request in this court, and we summarily denied both that same day. On September 10, 2009, petitioner filed in the Supreme Court a Petition for Review and a Request for Immediate Stay of Trial, and the Supreme Court stayed the trial to allow for consideration of the petition. On September 30, 2009, the Supreme Court granted the petition for review, vacated our order denying relief, and transferred the matter to us with directions that we issue an order to show cause why the relief sought in the petition should not be granted. The Supreme Court further ordered that its stay would remain in effect pending further order by this Court. On October 7, 2009, complying with the Supreme Courts order, we issued an order to Show Cause and set a briefing schedule. On December 1, 2009, the Presiding Judges of the Alameda, Contra Costa, and Napa County Superior Courts submitted their Application to File a proposed amicus brief in support of the San Francisco Superior Court. We granted that application and extended petitioners deadline to allow him to incorporate into his reply brief responses to the arguments raised in the amicus brief.
DISCUSSION
The petition attacks what it describes as the “new, unpublished rule” permitting only two judges in the San Francisco County Superior Court to approve criminal pleas. Having characterized this practice as a “rule, ” petitioner challenges it as invalid on the grounds that it was not adopted and promulgated pursuant to the requisite statutory procedures and allows the presiding judge to infringe upon the legitimate powers vested in all superior court judges. In response, respondent Superior Court of the City and County of San Francisco and the amici presiding judges of the superior courts of Alameda, Contra Costa and Napa counties, argue that the exercise by the presiding judge of his or her power to make particular assignments does not constitute the promulgation of a new rule, but is merely a permissible exercise of discretion pursuant to long-standing rules and procedures.
In his reply brief, for the first time in this court, petitioner argues that he is also entitled to specific performance based on an detrimental reliance rationale. It is a long-standing rule that, absent exceptional circumstances, California courts will not consider arguments raised for the first time in a reply brief. (See Kahn v. Wilson (1898) 120 Cal. 643, 644; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-766.) There being no exceptional circumstances to justify the late introduction of new arguments here, we decline to consider petitioner’s argument.
At the April 8 pretrial conference, Judge Breall informed counsel that under a new court policy, she was the only judge who could make pretrial offers. In its Return, respondent superior court set out its policy: “Prior to trial setting, the People and the Defense may present a plea in any appropriate department. But following trial setting, pleas are handled in Department 22 or the department assigned for purposes of the pretrial conference. If the parties reach a plea prior to the scheduled pretrial conference, they may appear in Department 22 or the assigned pretrial department. If the parties reach a plea after their pretrial conference, they may return to Department 22 or the assigned pretrial department to present the plea.”
Alvarez v. Superior Court (2010) 183 Cal.App.4th 969, recently determined that the San Francisco Superior Court’s policy of restricting the authority to approve criminal pleas to specific judges was a matter of internal court management, wholly within the presiding judge’s authority and, thus, was not subject to the rulemaking procedures outlined in Code of Civil Procedure section 575.1. The Alvarez court also held that the superior court’s judicial assignment procedure does not (1) conflict with Code of Civil Procedure section 166, subdivision (a)(3) [providing that superior court judges may in chambers “[h]ear and determine all uncontested actions, proceedings, demurrers, motions, petitions, applications, and other matters pending before the court”], (2) violate due process, or (3) violate Penal Code section 1192.5 [specifying certain procedures for reaching a plea agreement, but not imposing a time requirement on the acceptance of a conditional plea]. (Alvarez, supra, 183 Cal.App.4th at pp. 982-984.) In Alvarez the superior court judge, while in chambers, indicated he would accept a plea when court convened. He then sought permission to take the plea; ultimately, he informed the parties that he was not permitted to take it, but that the plea would occur in another department, before a judge who was designated to handle plea settlements. However, when the parties appeared before the judge designated to take pleas, Judge Haines, the judge informed them he would only accept a plea which provided for eight months of jail time, rather than the six months previously agreed to. (Id. at p. 974.) Alvarez rejected Judge Haines’ proposed disposition and filed his writ petition in the appellate court. The Alvarez court determined that the presiding judge’s assignment policy did not require the adoption of a new local rule because the presiding judge had authority to assign cases pursuant to statute, the California Rules of Court, and the San Francisco County Superior Court rules and that the assignment policy comported with policy considerations promoting efficient court operations. (Id. at pp. 977-981.)
Where applicable, section 575.1 requires that a proposed local rule (1) be submitted to and approved by the judges of the court, (2) be published, (3) be submitted to the local bar and others for their consideration and comment, (4) be filed with the Judicial Council, (5) be published in final form, and (6) take effect after a prescribed waiting period. (Code Civ. Proc. § 575.1; Gov. Code § 68071.) (See also California Rules of Court, rule 10.613 [governing adopting, filing, distributing, and maintaining local court rules].)
I. Restricting Which Judges May Approve Criminal Pleas Was a Proper Exercise of the Presiding Judge’s Power to Assign Cases.
We agree with the conclusion in Alvarez that the superior court’s procedure for designating particular judges to approve criminal pleas is well within the presiding judge’s discretion. Government Code section 69508, subdivision (a) provides that, subject to Judicial Council rules, a presiding judge “shall distribute the business of the court among the judges, and prescribe the order of business.” (Gov. Code § 69508, subd. (a).) The presiding judge’s “[a]ssignments of the ‘business’ of the court among judges of the court is wholly discretionary.” (Anderson v. Phillips (1975) 13 Cal.3d 733, 737.) The California rules of court confirm the presiding judge’s plenary authority to make judicial assignments (California Rule of Court, rule 10.603(c)(1)), to “[a]ssign judges to departments and designate supervising judges for divisions, ” (id., rule 10.603(b)(1)(A) & (B)), to reassign cases (id., rule 10.603(c)(1)(D)), and to delegate these powers to another judge (id., rule 10.603(d)).
Courts, such as San Francisco County Superior Court, which have more than three judges may designate criminal departments or divisions. (Cal. Rules of Court, rule 10.950.) Nonetheless, the presiding judge “retains final authority over all criminal and civil case assignments.” (Ibid.) The supervising judge of the Criminal Division “must assign criminal matters requiring a hearing or cases requiring trial to a trial department.” (Id., rule 10.951(a).) The presiding judge, supervising judge or other designated judge from the criminal division, “where not inconsistent with law, [must] assist in the disposition of cases without trial.” (Id., rule 10.951(b).) Furthermore, as necessary, the presiding judge may designate additional judges to assist in the disposition of cases without trial, under the supervising judge’s supervision. (Id., rule 10.951(c).)
After Judge Kahn reviewed the submissions of counsel and determined that he would accept a plea including a 13-year prison term, he communicated his decision to counsel via email, dated October 2, 2008. In that email he instructed counsel to “please confer with Judge Tsenin and possibly Judge Haines to make the arrangements for the taking of the plea and sentencing, either before me or another judge, ” thus recognizing that the case would need to be assigned to him for that purpose in order for him to take the plea. Judge Tsenin then transferred the case to Department 21 “to be heard before Judge Kahn, for plea.” As stated above, after petitioner did not plead on November 3, Judge Kahn returned the case to Department 22.
When understood in this context, it is apparent that the “new rule” being applied here is not a local rule, requiring formal promulgation and adoption pursuant to the Code of Civil Procedure section 575.1. Rather, it is an assignment of a specific task to specific judges, made by the presiding judge. The Rules of Court grant the presiding judge broad discretion to make judicial assignments and to apportion the business of the court. (Cal Rules of Court, rule 10.603(b)(1).) They also obligate other judges to follow the presiding judge’s directives “in matters of court management and administration.” (Id., rule 10.608(5).) The power of the presiding judge to assign judges to particular cases or proceedings in order to accomplish specific tasks and the duty of other judges of the court to acknowledge those assignments is clear.
In its return, respondent contends that Judge Haines’ assignments were informed by Administrative Office of the Courts (AOC) reports which found that pretrial conferences were not viewed as a realistic forum for settlement, with counsel regularly delaying serious plea offers until trial. Trial departments were therefore being jammed and the jury system was being stressed. The centralization of the pretrial function resulting from the new assignment criteria was arguably a means of streamlining the system, in conformity with the AOC reports and pursuant to the goal of identifying and eliminating problems in the criminal court system. At oral argument, petitioner’s counsel amplified this claim, in an attempt to convince us to reject Alvarez. She asserted that the assignment procedure was adopted to promote the goal of efficiency, as recommended by the reports, but at the expense of achieving justice. To do this, she contended, the procedure attempts to produce more favorable settlements (as judged from the defense perspective) earlier in the process and for settlement offers to become less favorable as trial approaches. There is, however, nothing in the record to substantiate the claim that the challenged assignment procedure was adopted in response to the AOC reports. A final report, entitled “Technical Assistance Assignment for San Francisco County Superior Court” was completed on or about March 15, 2007. A follow-up report, dated February 13, 2009, reiterated recommendations from the 2007 report and made new recommendations. Although some of the recommendations made generally might have encompassed the challenged assignment policy (e.g., “Continue to improve consistency of judicial practices, ” “Develop and implement a strategy for reducing the queue of criminal cases pending trial”) none specifically identified the assignment policy at issue here. There is also no evidence before us showing what effect, if any, these reports had on the Presiding Judge’s decision to institute the new assignment procedure. Thus, we cannot conclude that the superior court’s assignment policy was intended to implement the recommendations contained in the AOC reports. Furthermore, nothing in the record establishes that the goal of the assignment procedure is to encourage more favorable settlements at any particular stage of the prosecution.
Respondent’s request that, pursuant to Evidence Code sections 452, subdivision (c) and 459, we take judicial notice of its local rules and the March 15, 2007 and February 13, 2009 AOC Final Reports is granted.
Based on anecdotal information, the 2007 report does state that settlements in San Francisco Superior Court do tend to become more favorable to the defendant as cases age. Many factors affect the terms of a plea bargain, including the parties’ evolving understanding of the merits of a case and a desire to reward defendants who promptly accept full responsibility for their actions. Whether these factors militate in favor of a more or less lenient sentence at different phases of the litigation depends on the individual case. There is nothing about the superior court’s assignment procedure, however, that dictates that a more or less favorable plea should be approved at any particular stage in the proceedings.
Relying on Hall v. Superior Court (2005) 133 Cal.App.4th 908, petitioner urges us to find that the superior court improperly relied on an unpromulgated local rule. Hall, however, is inapposite to the facts of this case. In Hall, the supervising judge of a courthouse issued a memorandum requiring that all motions be heard at least 30 days before trial. Hall attempted to file a Pitchess motion after the 30-day motion cutoff date had passed and, pursuant to the supervising judge’s memorandum, the trial court would not calendar the motion. (Id. at p. 913.) On a petition for writ of mandate, the court of appeal issued a peremptory writ directing the trial court to file and decide the Pitchess motion. The court of appeal found that the 30-day motion cutoff rule was invalid because it was the functional equivalent of a local rule but had not been properly promulgated or adopted in accordance with statute and rules of court. (133 Cal.App.4th at pp. 914-918.) However, what is at issue here is the authority of presiding and supervising judges under the California Rules of Court to assign judges to and between judicial departments and to delegate specific judicial duties. (Cal. Rules of Court, rule 10.603(b)(1)(A), (B) & (d).)
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
We agree with the Alvarez’court’s observation that here “[t]he assignment procedure places no requirements on counsel [and] does not affect substantive rights of defendants....” (Alvarez, supra, 183 Cal.App.4that p. 980.) Rather, the assignment procedure merely determines at a given point in time in which department the defendant may plead. By way of contrast, in Hall, the unpromulgated rule determined what counsel had to do by a certain time. Here there was no new “rule, ” either affecting petitioner’s substantive rights or requiring counsel to modify his or her behavior. Rather, the presiding judge, via the supervising judge, adopted a restriction in the assignment of cases-something well within his discretion to do-which resulted in petitioner having to plead before Judge Breall, rather than Judge Kahn. Because this was the exercise of the presiding judge’s power to assign cases, no new local rule had to be promulgated.
II. The Exercise of the Power to Assign Cases Did Not Impermissibly Infringe on the Powers of Any Judge.
The petition also contends that the exercise of the presiding judges power to assign which judges can approve felony pleas divests other judges of their authority to approve pleas. Petitioner asserts this power “rightfully belongs in the hands of all superior court judges.” He argues that section 166, subd. (a)(3) of the Code of Civil Procedure authorizes superior court judges to “hear and determine all uncontested actions, proceedings, demurrers, motions, petitions, applications, and other matters” pending before them; he claims that Judge Kahn was prohibited from exercising his judicial authority.
Presiding judges routinely assign judicial duties and assignments. Not all assignments involve the exercise of the full panoply of judicial powers. The fact that a case is assigned for a specific purpose to a particular judge has no impact on other statutory judicial powers. As a practical matter, Judge Kahn was never prevented from exercising any of his judicial powers by the presiding or supervising judge. The petitioner never actually pled guilty before Judge Kahn and Judge Kahn never accepted a plea. Initially, petitioner requested time for his mother to talk with the District Attorney about drug treatment and Judge Kahn indicated he would take petitioner’s plea later if the petitioner so wished. He continued to express a willingness to take petitioners plea, but the case was never reassigned to him.
Citing counsel’s declaration, petitioner asserts that Judge Kahn did not merely “decline to enter a plea, ” but was “barred from taking one by Judge Haines.” In her declaration, defense counsel asserts that while she was in Judge Kahn’s chambers, Judge Kahn called Judge Haines, who “refused to allow Judge Kahn to take the plea offer because of the new ‘rule’ dictated by Presiding Judge McBride....” It is unclear whether counsel could hear Judge Haines or whether she merely surmised what he said. Regardless, the record demonstrates that after petitioner declined to plead before Judge Kahn, Judge Kahn entered a minute order returning the case to another department. Furthermore, nothing in the record suggests that Judge Kahn, after entering that order, attempted to accept the plea.
The petition also intimates that Judge Massullo was improperly intimidated and prevented from exercising her rightful judicial power or discretion by the “rule” limiting which judges could take pleas. These claims have absolutely no evidentiary basis. Petitioner states that in response to the District Attorneys motion to dismiss 13 of the 14 prior strikes alleged in the First Amended Information that, “Upon information and belief, Judge Massullo promptly telephone Judge Breall for consultation, and then denied the DAs motion to dismiss the strike priors.” However, Judge Massullo-after requesting written briefing on the issue-granted the motion to amend the information, and the Second Amended Information was filed the same day. Petitioner’s range of potential plea liability as reduced was consistent with the plea Judge Kahn was prepared to accept. This belies any claim that Judge Massullo was improperly intimidated.
In short, there is nothing in the record before us to suggest that any judge was prevented from exercising his/her rightful powers by the presiding judges exercise of his power to assign cases and prescribe the order of business. In Alvarez, the court rejected this same argument that the presiding judge’s power to assign cases interfered with the exercise of another judges power or overruled a judge of equal authority. (Alvarez, supra, 183 Cal.App.4th at pp. 982-983.) The record in Alvarez showed that a judge was prepared in a court session to accept a plea, but did not do so because he was not given permission. Here, after petitioner declined to plead, Judge Kahn never even tried to take the plea. The case was simply not re-assigned to him. On these facts, the presiding judge could not have possibly usurped Judge Kahns powers.
DISPOSITION
The order to show cause is discharged. The petition for a writ of mandate and/or prohibition is denied. The stay previously issued by the Supreme Court shall automatically dissolve upon issuance of the remittitur.
We concur: Siggins, J., Jenkins, J.