MAAS v. S.C. (PEOPLE) (To be called and continued to the September 2016 calendar.)Petitioner’s Opening Brief on the MeritsCal.September 11, 2015 SUPREME COURT FILED IN THE SUPREME COURT SEP 14 2015 OF THE STATE OF CALIFORNIA Frank A. McGuire Clerk MICHAEL EUGENE MAAS, $225109 Deputy Petitioner, (Court ofAppeal No. D064639) VS. SUPERIOR COURT(PEOPLE), Respondent. (San Diego County Sup. Ct. Nos. SCE185960 ) ) ) ) ) ) ) ) & SCE188460) ) ) Appeal from the San Diego County Superior Court PETITIONER’S OPENING BRIEF ON THE MERITS After the Decision by the Court of Appeal Fourth Appellate District, Appeal No. D064639 Filed December 10, 2014 RUSSELL S. BABCOCK California State Bar No. 99130 Certified Specialist, Criminal Law State Bar of California Board of Legal Specialization LAW OFFICES OF RUSSELL S. BABCOCK 1901 First Avenue, Suite 138 San Diego, California 92101 russbab@gmail.com (619) 531-0887 Attorneys for Petitioner MAAS By Appointmentofthe Court Underthe Appellate Defenders, Inc. Independent Case Program IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL EUGENE MAAS, ) S225109 ) Petitioner, ) (Court of Appeal No. ) D064639) VS. ) ) (San Diego County SUPERIOR COURT (PEOPLE), _) Sup. Ct. Nos. SCE185960 ) & SCE188460) Respondent. ) ) Appeal from the San Diego County Superior Court PETITIONER’S OPENING BRIEF ON THE MERITS After the Decision by the Court of Appeal Fourth Appellate District, Appeal No. D064639 Filed December10, 2014 RUSSELL S. BABCOCK California State Bar No. 99130 Certified Specialist, Criminal Law State Bar of California Board of Legal Specialization LAW OFFICES OF RUSSELL S. BABCOCK 1901 First Avenue, Suite 138 San Diego, California 92101 russbab@gmail.com (619) 531-0887 Attorneys for Petitioner MAAS By Appointment of the Court Under the Appellate Defenders, Inc. Independent Case Program TABLE OF CONTENTS Page TABLE OF AUTHORITIES......... 00000000. c cece eee i ISSUE BEFORE THE COURT ON GRANTOF REVIEW. ...... 1 STATEMENT OF THE CASE AND SUMMARYOF FACTS. ... 2 ARGUMENT... 00000.ncece eens 5 I. A PETITIONER MAY ASSERT A PEREMPTORY CHALLENGE UNDER CODEOF CIVIL PROCEDURE SECTION 170.6 AGAINST A JUDGE WHO IS ASSIGNED TO ASSESS A PETITION FOR WRIT OF HABEAS CORPUS BEFORE AN ORDER TO SHOW CAUSE HAS BEENISSUED,IF THE JUDGE IS DIFFERENT FROM THE ORIGINAL TRIAL JUDGE........0..0.0.0..0000000.0.0005. 5 A. Standard of Review. .......000. 0000 cece eee eee 5 B. Legal Analysis. 2.0.0.0... 00 cece cece ee 5 CONCLUSION.... 00.00.ceee eee 23 CERTIFICATION OF WORD COUNT..................00.. 24 TABLE OF AUTHORITIES Page CASES Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388.000.000.000 0c eee eee 5 Eagle Maint. & Supply Co. v. Superior Court (1961) 196 Cal.App.2d 692. .......000000000. 18 Haworth v. Superior Court (2010) 50 Cal.4th 372... 00... cece eee eee es 5 In re Clark (1993) 5 Cal.4th 750.0000... 0.0ecree e ey 19 In re Lawler (1979) 23 Cal.3d 190...... 0.ccc cece ees 17 International Union ofOperating Engineersv. Superior Court (1989) 207 Cal.App.3d 340. ................ 7 Jacobs v. Superior Court (1959) 53 Cal.2d 187.0..00000000 000, 10-12, 22 Johnson v. Superior Court (1958) 50 Cal.2d 693.200...eee 7, 8, 13 Mayr v. Superior Court of Tehama County (1964) 228 Cal.App.2d 60. ....000 00000. eee eee, 7,8 McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512.0000...eee eee 6, 22 il McCauley v. Superior Court (1961) 190 Cal.App.2d 562..............0000..0.. 008. 6, 133 McClenny v. Superior Court (1964) 60 Cal.2d 677...0ceceeee eee 15 Pappa v. Superior Court (1960) 54 Cal.2d 250...ccc cece eee ee 8 Pappa v. Superior Court (1960) 54 Cal.2d 350.2...eeeee eee 15 People v. Rojas (1963) 216 Cal.App.2d 819. .....0.... 0c cee ee 15 People v. Romero (1994) 8 Cal.4th 728.000. ccc 16, 17 People v. Smith (1961) 196 Cal.App.2d 854. ... 0.00... eee. 13, 14 People v. Villa (2009) 45 Cal.4th 1063. 2.0...ceceeee 15 Peracchi v. Superior Court (2003) 30 Cal.4th 1245. 20...ae. 9,18 Solberg v. Superior Court ofSan Francisco (1977) 19 Cal.3d 182..... 00.000.ccceee ees 8 The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025. 2.0...eee 8 Yokley v. Superior Court (1980) 108 Cal.App.3d 622. .............0.0..004. 15, 16, 20 ill STATUTES Code of Civil Procedure section 170.6... 1, 3-9, 11-14, 16, 19-21, 23 Code of Civil Procedure section 170.6, subdivision (a)(1). ....... 5 Code of Civil Procedure section 170.6, subdivision (a)(4). ..... 6, 8 Code of Civil Procedure section 170.6, subdivision (a)(2). ..... 6,9 Penal Code section 1474........00..0.00 000 cece eee eee 17 Penal Code section 1476..........0.00 000 cece eee eeey 17 OTHER AUTHORITIES California Criminal Defense Practice (2015) ................0. 13 iv IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL EUGENE MAAS, ) $225109 ) Petitioner, ) (Court of Appeal No. ) D064639) VS. ) ) (San Diego County SUPERIOR COURT (PEOPLE), ) Sup. Ct. Nos. SCE185960 ) & SCE188460) Respondent. ) ) Appeal from the San Diego County Superior Court PETITIONER’S OPENING BRIEF ON THE MERITS ISSUE BEFORE THE COURT ON GRANT OF REVIEW On March 25, 2015,this Court granted review ofthe following issue: “Does Codeof Civil Procedure section 170.6 permit a peremptory challenge to be asserted, before an order to show cause has issued, against a judge whoisassignedto assess petition for writ of habeas corpus?” STATEMENT OFTHE CASE AND SUMMARYOF FACTS In 1998, petitioner, Michael Eugene Mass, wasconvicted of grand theft of a car an automobile and unlawfully driving or taking of a vehicle and sentenced to 25 yearsto life in prison. (Petition at p. 1.) The trial was presided over by the Honorable Allan J. Preckel. (Order Denying Petition for Writ ofHabeas Coprus, August 7, 2013, p. 1.) Later, petitioner was convicted of burglary and forgery ofa fictitious check and sentenced to a consecutive term of 25 yearsto life. (Petition at p. 1.) Thetrial was presided over by the Honorable Larrie R. Brainard. (Order Denying Petition for Writ of Habeas Coprus, August 7, 2013, p. 2.) Both of these cases were affirmed by the Court of Appeal. (People v. Thomasetal. (Jan. 11, 2001, D031288 [nonpub. opn.]; People v. Maas (May 16, 2000, D032176) [nonpub. opn.|.) On July 13, 2013, petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court. (Petition, Exhibit A.) On July 19, petitioner wrote to the clerk of the Superior Court, asking for the case numberassignedto the petition, the date the petition was filed, and the nameofthe judge assignedto thepetition. (Petition, Exhibit B.) On July 29,petitioner received a photocopy of his petition’s cover page file stamped with the date July 17, 2013. (Petition, Exhibit C.) On August 4, 2013, petitioner wrote to the clerk a second time, again asking for the nameofthe judge assigned to his case. (Petition, Exhibit D.) On August 7, 2013, Judge John M. Thompsonfiled an order denying petitioner’s request for a writ of habeas corpus. (Petition, Exhibit E.) Petitioner petitioned the Court of Appeal, raising a variety of challenges to the lawfulness of his sentence and ineffective assistance of counsel. In his initial petition with the Court of Appeal, petitioner explainedthatifhe had been told that Judge Thompson wouldbe the judge reviewinghis petition, he would havefiled a motion to disqualify him. (Petition at p. 2; Code Civ. Proc., § 170.6.') Ina declaration attached to hisinitial petition, petitioner repeated his claim that he would have requested that Judge Thompson be removed undersection 170.6 and asked for another judge. (Petition, Exhibit G.) In histraverse filed on March 27, 2014,petitionerreiterated his claim that Judge Thompson wasbiased against him. (Second ' All references to code sections refer to the Code of Civil Procedure. 3 Traverse, 1-2.) The Court of Appeal asked the Attorney Generalfor an informal response addressing Maas’s contention that he was denied theright to file a peremptory challenge undersection 170.6. After receiving the Attorney General’s response, the Court of Appeal issued an order to show cause and appointed counselfor petitioner. Petitioner’s appointed counsel filed a supplement petition for writ of habeas corpus. The Court of Appeal deemed Maas’spetition as seeking a writ of mandate directing the Superior Court to vacate its August7, 2013, order denyinghis petition for writ of habeas corpus and grant that relief. It also directed the Superior Court to reassign Maas’s petition to a judge other than Judge Thompsonforthe decision. (Michael Eugene Maasv. Superior Court (People) (December 10, 2014, D064639) [nonpub. opn.] pp. 6-7.) This Court granted petition for review on its own motion, designating petitioner Maasaspetitioner. ARGUMENT I. A PETITIONER MAY ASSERT A PEREMPTORY CHALLENGE UNDER CODEOF CIVIL PROCEDURE SECTION 170.6 AGAINST A JUDGE WHO IS ASSIGNED TO ASSESS A PETITION FOR WRIT OF HABEAS CORPUS BEFORE AN ORDER TO SHOW CAUSE HASBEENISSUED, IF THE JUDGE IS DIFFERENT FROM THE ORIGINAL TRIAL JUDGE A. Standard of Review Claims raising legal questions — including questionsofstatutory interpretation — are subject to independent review on appeal. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 384-385; Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 394 [statutory construction].) B. Legal Analysis A judge maynot“try a civil or criminalaction orspecial proceeding of any kind or character nor hear any matter therein that involves a contested issue of law” whenit is shownthat heis prejudiced “against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” (§ 170.6, subd. (a)(1).) To disqualify a judge underthis statute, a party “may establish this prejudice by anoral or written motion withoutprior notice, supported byaffidavit or declaration under penalty ofperjury, or an oral statement underoath,”that the judge presiding over the matter “is prejudiced againsta party or attorney,or the interest of a party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartialtrial or hearing before the judge ....” (§ 170.6, subd.(a)(2).) So long asthe “motion is duly presented, andthe affidavit or declaration underpenalty ofperjury is duly filed or an oral statement underoath is duly made, thereupon and without any further act or proof,” a new judge shall be assigned. (§ 170.6, subd. (a)(4).) Section 170.6 provides a party with “an extraordinary right to disqualify a judge,”a right that is “ ‘automatic’ in the sense that a good faith beliefin prejudice is alone sufficient, proofof facts showing actual prejudice not being required. [Citations.]” (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531, originalitalics.) “Theright conferred by . . . section 170.6... is a substantial right which is now partof the system of due processandjudicialfair play in this state.” (McCauley v. Superior Court (1961) 190 Cal.App.2d 562, 564 (McCauley).) “The purpose of the disqualification statute is . . . to promote fair and impartial trials... .” Unternational Union ofOperating Engineers v. Superior Court (1989) 207 Cal.App.3d 340, 349). Asthis Court has noted, this right to disqualify a judge for prejudice without an adjudication of bias resulted from “many years’ effort by the organizedbar ofthis state.” (Johnson v. Superior Court (1958) 50 Cal.2d 693, 696 (Johnson).) Sinceit is difficult to prove a judge’s prejudice andit is importantthat the judicial system be free of any “suspicion of unfairness,” the Legislature may have reasonably decided that a party should have a chance to automatically disqualify a judge, without needing to prove a judge’s prejudice. (Jbid.) In passing section 170.6, the Legislature “[{u]ndoubtedly [considered] the possibility” that this right to automatically disqualify a judge could be abusedby litigants. (Mayr v. Superior Court of Tehama County (1964) 228 Cal.App.2d 60, 64 (Tehama County.) In somecases,litigants might use section 170.6 to go “[j]udge- shopping” by removing a judge not becausethey believe the judgeis prejudiced against them, but becausethey believe the judge’s views on the law orattitude towards the exerciseofjudicial discretion is not favorable to their position in the case at hand. (Solberg v. Superior Court ofSan Francisco (1977) 19 Cal.3d 182, 194 (Solberg).) In othercases, litigants may use section 170.6 to gain a tactical advantage over opponents, such as by delayinga trial. (/d. at p. 195.) Nevertheless, after weighing this potential for abuse “againstits obvious advantages,” the Legislaturestill chose to enact the law. (Tehama County, supra, 228 Cal.App.2d at p. 64.) To minimize the abuseof section 170.6, the Legislature placed several limitations on a party’s right to automatically disqualify a judge. (Johnson, supra, 50 Cal.2d 693, 697; The HomeIns. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032 [section 170.6 “‘is designed to prevent abuse by parties that merely seek to delaya trial or obtain a more favorable judicial forum”].) First, the Legislature limited each side to one disqualification motion in any oneaction or special proceeding. (§ 170.6, subd. (a)(4); Pappa v. Superior Court (1960) 54 Cal.2d 250, 353.) Second, the Legislature required the party or attorney making the motion to “show goodfaith by declaring under oath that the judge is prejudiced.” (Johnson, supra,at p. 697.) Andthird, the Legislature imposedstrict timeliness requirements. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1252 (Peracchi).) To be timely, a motion to disqualify a judge under section 170.6 mustbe filed before the occurrenceofcertain specified eventsthat mark the beginningofthe “trial of the cause”or in the case of a hearing, before the beginning of the hearing. (§ 170.6, subd. (a)(2)). Section 170.6, subdivision (a)(2), specifically provides, “In no event shall a judge, court commissioner, or referee entertain the motionifit is made after the drawing ofthe nameofthefirst juror,orif thereis no jury, after the making of an openingstatement by counsel for plaintiff, or if there is no opening statement by counsel for plaintiff, then after swearingin the first witnessor the giving of any evidence or after trial of the cause has otherwise commenced. If the motion is directed to a hearing,other than thetrial of a cause, the motion shall be made notlater than commencementofthe hearing.” This timeliness requirement deters parties from “judge shopping” (Peracchi, supra, 30 Cal.4th at p. 1252) by not allowing them to remove a judge once he or she has issued a ruling against them. It also prevents parties from delayinga trial or hearing once proceedings have begun. While this Court has held that a party may not make a motion to disqualify a judge at any time after a proceeding has begun,including at a subsequent proceeding that amounts to a continuation of the earlier, original proceeding (Jacobs v. Superior Court (1959) 53 Cal.2d 187 (Jacobs)), this Court has never addresseda situation in which the judge presiding overthe original proceeding and the judge presiding over the subsequent proceeding were different. In Jacobs, this Court rejected as untimely two grandparents’ motion to disqualify a judge from hearing their request to modify an earlier custody order and their petition for guardianship. (/d. at p. 190.) The judge whom the grandparents movedto disqualify was the same judge who had presided overthe original custody proceedings. (Ibid.) In finding the grandparents’ motion untimely, this Court explained that the request to modify a custody orderand the petition for guardianship did not constitute new actionsor special proceedings, but rather continued the original custody proceedings, because in both cases the grandparents sought to modify the judge’s earlier orders. (Jd. at pp. 10 190-191 [noting that the parties were the same and “the paramount questions to be decided”by the same judge were the same].) Even thoughsection 170.6 does not specify whetherornot a party may moveto disqualify a judge in a subsequenthearing, this Court concludedthat “since the motion [to disqualify under section 170.6] must be made beforethe trial has commenced,it cannot be entertained as to subsequent hearings whichare part or a continuation ofthe original proceedings.” (Jacobs, supra, 53 Cal.2d at p. 190.) The rationale for this rule in Jacobs was to prevent a party from judge shopping. As this Court explained, if a disqualification were allowed in supplemental proceedings, “it would meanthat the judge whotried the case, and whoisordinarily in the best position to pass upon the questions involved, could by a mere general allegation of prejudice, . . . be disqualified from hearing such matters . . . .” (Id. at p. 191.) Such a rule “would makeit possible forlitigants to gamble on obtaining a favorable decision from one judge, andthen, if confronted with an adverse judgment, allow them to disqualify him without presenting facts showing prejudice, in the hopeofsecuring a different ruling from another judge in supplementary proceedings 1] involving substantially the same issues.” (Ibid.) By preventing parties in a supplementary proceeding from moving to disqualify the same judge who presidedovertheoriginal proceeding, this Court rightly balanced the substantial right of automatic disqualification against the substantial dangerofjudge shopping. Since in Jacobs the grandparentshad already accepted the judgein the earlier proceeding and therefore indicated he was not prejudiced against them, there was no dangerthatthelater, supplementary proceedings might appear to be unfair. Butif a different judge presides over the subsequent proceedings, | then the rationale ofJacobs should not apply.First, if a different judge presides over the supplementary proceedings, there would be no dangerthatparties might misuse section 170.6 to try to shop for a judge that they perceivedto be more favorable to their position. Second, and even more important, to apply the rule set forth in Jacobs to a situation in which a different judge presided over the supplementary proceeding would underminethe purposeof section 170.6. Section 170.6 was designedto give parties a substantial right to automatically disqualify a judge as “part of the system of due 12 process and judicialfair play in this state.” (McCauley, supra, 190 Cal.App.2dat p. 564.) Theright also helps preserve the integrity of the state’s judicial system. (See Johnson, supra, 50 Cal.2d 693, 696.) To preserve both the actual and perceived fairness of the judicial process, this Court should follow the Court of Appealin modifying the Jacobsrule for situations in which the judge whopresides over a supplementary proceedingis different from the judge who presided over the original proceeding. A party, either petitioner or respondent, whohasnot previously moved under section 170.6 may do so ina supplemental proceeding to the original action only if the challengeis directed “as to a judge other than any judge who has previously heard any phaseofthe matter.” (People v. Smith (1961) 196 Cal.App.2d 854, 859 (Smith); see also, California Criminal Defense Practice (2015) § 60.07[2][d] [“The only time a disqualification motion can be made in a supplemental hearing is whenthepresiding judge is one other than the one whohas heard previous phases ofthe matter”’].) In Smith, the Court of Appeal concludedthat a defendant mayfile a section 170.6 affidavit to disqualify a judge from hearing an allegation that the defendant violated probation where the judge had 13 no previous connection to the case. (Smith, supra, 196 Cal.App.2dat p. 859-860.) Because the judge had neverheard anyearlier proceedings in the case, the Court of Appeal determined that the party moving to disqualify the judge under section 170.6 could not engage in the kind ofabuse identified by this Court in Jacobs. (Smith, supra, 196 Cal.App.2d 854, 859.) As the court in Smith explained, when the judge at the subsequentproceeding is a different judge from the one at the original proceeding,“weare not dealing with the limitations imposedby the Legislature to prevent an abuse ofthe section but with the basic objectiveofthe sectionitself.” (Smith, supra, 196 Cal.App.2d 854, 859.) That objective, as the court in Smith emphasized,is set forth in the opening paragraphofsection 170.6, which specifies that “{n]o judge of any superior . . . court of the State of California shall try any civil or criminalaction orspecial proceeding of any kind or character nor hear any matter therein which involves a contested issue of law or fact”if a party establishes that the judge is prejudiced in accordance with the requirementsof section 170.6. This court should apply the Court of Appeal’s reasoning in Smith 14 to petitioner’s case because there is no dangerthatpetitioner was trying to judge shop or cause undue delays. Althougha petition for writ of habeas corpus “‘is generally regarded as a special proceeding” (People v. Villa (2009) 45 Cal.4th 1063, 1069), courts have also described habeas corpusas a continuationofthe original criminal proceeding. (See Yokley v. Superior Court (1980) 108 Cal.App.3d 622, 627-628 (Yokley).) In Yokley, the Court of Appeal explained that a proceeding constitutes a continuationofthe original action when the supplementary proceeding concerned “matters necessarily relevant and materialto the issues involvedin the [original] action.” (id. at p. 626, quoting McClenny v. Superior Court(1964) 60 Cal.2d 677, 684 (McClenny),italics omitted.) The Court of Appealcited cases holding that a contempt proceedingis a continuation ofthe original domestic relations action (McClenny, supra, 60 Cal.2d at p. 681), a probation revocation hearing is a continuation ofthe original criminaltrial (People v. Rojas (1963) 216 Cal.App.2d 819), anda retrial after reversal in a criminal case was a continuation ofthe original criminal proceeding (Pappa v. Superior Court (1960) 54 Cal.2d 350). 15 In Yokley, the court then explainedthat “(t]he factual issues to be resolved[in an order-to-show-cause proceeding]relate directly to the criminal proceeding and involve matters necessarily relevant and material to the issues involvedin theoriginal action, and thus constitute a continuation ofthe original action.” (Yokley, supra, 108 Cal.App.3d at p. 628.) Since the judgein the order-to-show-cause proceeding had beenthe judge in the petitioner’s criminaltrial, the Court ofAppeal did not permit the petitioner in Yokley to use section 170.6 to challenge the judge. (/d. at p. 627.) The court, however, did note in dictum that as long as a judge who had “never previously participated in the case was assignedto the case, a party who had not yet exercised a section 170.6 challenge could exerciseit against the new judge.” (lbid.) Although Yokley addressed the stage of a habeas corpus proceeding after an order to show causehasbeenissued,the stage at which a judge decides whetherto issue an order to show cause also involves contestedissues of law and fact. “A habeas corpus proceeding begins withthe filing ofa verified petition for a writ of habeas corpus” (People v. Romero (1994) 8 Cal.4th 728, 737 16 (Romero)) that “allege[s] unlawfulrestraint, name[s] the person by whomthe petitioneris so restrained, and specif[ies] the facts on which[the petitioner] bases his claim that the restraint is unlawful.” (Un re Lawler (1979) 23 Cal.3d 190, 194; see Pen. Code, § 1474.) In reviewing a petition for a writ of habeas corpus, a court must determine whether the petition puts forward a primafacie case for relief by setting forth facts that, if true, wouldentitle a petitioner to relief, and whether thepetitioner’s claims are procedurally barred. (Romero, supra, 8 Cal.4th at p. 737.) If the petition either fails to state a primafacie caseforrelief or is procedurally barred, then the court may summarily deny it. (Jbid.) But if a habeas corpuspetition “states a prima facie case on a claim that is not procedurally barred,” then “the court is obligated by statute to issue a writ of habeas corpus.” (/bid.; Pen. Code, § 1476.) Whenthe court is deciding whetheror not it may issue a writ of habeas corpus,it is resolving a contested issue of law and fact — namely, whether a prima facie case for relief has been madebythepetitioner. Although this court has explained that “because of the dangers presented by judge-shopping — by eitherparty — the limits on the 17 numberand timing of challenges pursuantto this statute are vigorously enforced” (Perrachi, supra, 30 Cal.4th at p. 1263), petitioner contendsthatin his case the statute shouldbe liberally construed “to effect its objects and to promote justice” (Eagle Maint. & Supply Co. v. Superior Court (1961) 196 Cal.App.2d 692, 695; see also § 4). First, the kind of abuse that this court was concerned about in Jacobs could not have occurredin petitioner’s case because the judge whoruled onhis habeaspetition was different from the judges whopresided overhis twotrials. The Honorable Allan J. Preckel presided overhis trial in case number SCE185960. (Order Denying Petition for Writ of Habeas Corpus, August 7, 2013, p. 1.) And the Honorable Larrie R. Brainard presided over his trial in case number SCE188460. (Order Denying Petition for Writ of Habeas Coprus, August 7, 2013, p. 2.) The Honorable Judge M. Thompson ruled on petitioner’s habeaspetition. Judge Thompson had no previous connection to either of petitioner’s criminal jury trials. Therefore, petitioner could not have been judge shoppingor otherwisetrying to abusehis right to automatically disqualify Judge Thompson. Sincepetitioner had not 18 previously movedto disqualify any judge undersection 170.6 in any of the earlier proceedings, he wasentitled to move to disqualify Judge Thompson. To denypetitioner his right to make a motion to disqualify Judge Thompson would underminethe purposeofsection 170.6, which was designed to give parties the right to automatically disqualify a judge whom they perceived was biased against them. For many habeas petitioners, their petition presents their last and perhaps only chance to get their conviction overturned. A judge’s ruling on whetheror not a petition for habeas corpusstates a prima facie case can be a dispositive motion. If the habeaspetition is denied by a Superior Court judge, then the petitioner cannotfile the same petition again in the Superior Court. (See In re Clark (1993) 5 Cal.4th 750, 774 [“repetitious successive habeaspetitions are not permitted”].) It would be unfair to deny habeaspetitioners their right to automatically disqualify a judgethey believe is prejudiced against them. Oncea criminal defendant’strial or guilty plea has begun, the defendanthas accepted the judge assignedto hear his or her case by not moving to disqualify the judge undersection 170.6. Ordinarily, 19 whena convicted defendantfiles a habeaspetition in the Superior Court, the judge whopresided overthe original proceeding will rule on the habeaspetitioner, since “there is no judgebetter suited for making a determinationofthe issuesraised in [a] petitioner’s petition than the originaltrial judge.” (Yokley, supra, 108 Cal.App.3d at p. 661.) But if the judge ruling on the habeaspetition is different from the originaltrial judge, then the habeaspetitioner has not yet accepted this judge and maybelieve the judge is prejudiced against him orher. The substantial right conferred by section 170.6 onlitigants can only be protected if this Court allows a habeas petitioner to automatically disqualify a judge assigned to rule on a habeaspetition whenthat judgeis different from the originaltrial judge. This rule wouldnotbe difficult to implement and would not waste judicial resources. Since in the vast majority of cases the same judge who presided over the original criminal trial would also rule on the habeas petition, the petitioner would not be allowed to move to disqualify the judge undersection 170.6. Therefore, the court whoassignsthe habeaspetition to the judge would notneed to notify the petitioner of the judge who would be reviewinghispetition. In the few instances, 20 like petitioner’s case, where a judge whois different from original trial judge, however, the superior court clerk would need only to notify the petitioner of the name of the judge who would rule on his petition. This would be an easy administrative matter. The court clerk could include the nameofthe judge with the file stampedpetition returned to the petitioner. Without this notification, there would be no way for a habeaspetition to know whowasthe judge reviewing his habeaspetition. In petitioner’s case, since the clerk of the superior court nevertold petitioner the nameofthe judge presiding over his habeaspetition despite his previous requests. Thus, he never had a chanceto exercise his right to move to disqualify the judge who reviewedhis petition in the Superior Court. By explaining that he would have filed a motion undersection 170.6, challenging Judge Thompson, petitioner showedthat he would have substantially complied with the requires of that statute, if he had been giventhe opportunity. Petitioner made his statementin his initial petition, which hefiled with the Court ofAppeal under oath, andin a declaration attached to 21 his petition. (Petition, 1-2 & Exhibit G.) Underthestatute, the only requirements are timely submission of an oath or affidavit and a good faith belief that the judge is prejudiced againstthe party. (Jacobs, supra, 53 Cal.2d at p. 190; McCartney, supra, 12 Cal.3d at p. 513.) 22 CONCLUSION For the reasonsgiven above, section 170.6 permit a peremptory challenge to beasserted, before an order to show cause has issued, against a judge whois assignedto assess a petition for writ of habeas corpusif the judge is different from the originaltrial judge. Dated: September 9, 2015 Respectfully Submitted, KC)5 Vir Russell S. Babcock Attorney for Petitioner MAAS 23 CERTIFICATION OF WORD COUNT I certify that the word countofthis computer-produced document, calculated in accordancewith rule 8.520(c) of the California Rules of Court, does not exceed 14,000 words, andthat the actual word count is 4,207 words,as calculated by the WordPerfect software in whichit was written. Date: September 9, 2015 MOp~5 ~rrn —~ Russell S. Babcock Attorney for Petitioner PROOF OF SERVICE BY MAIL (Cal. Rules of Court, rules 1.21, 8.50.) (Michael Eugene Maasv. Superior Court (People), No. 225109) I, Russell S. Babcock, declare that: I am overthe age of 18 years and nota party to the case; I am employedin, or am a resident of, the County of San Diego, California, where the mailing occurs; and my business address is 1901 First Avenue, Suite 138, San Diego, California 92101. I further declare that I am readily familiar with the business practice for collection and processing of correspondencefor mailing with the United States Postal Service; and that the correspondence shall be deposited with the United States Postal Service this same day in the ordinary courseofbusiness. I causedto be served the following document(s): PETITIONER’S OPENING BRIEF ON THE MERITSbyplacinga true copy of each documentin a separate envelope addressed to each addressee, respectively, as follows: Court ofAppeal San Diego Superior Court Fourth Appellate District, Div. 1 Hon. John M. Thompson 750 B. Street, Suite 300 East County Courthouse San Diego, CA 92101 Department EC-12 250 E. Main Street El Cajon, CA 92020 Michael Eugene Maas Petitioner I then sealed each envelope and, with the postagethereon fully prepaid, I placed each for deposit in the United States Postal Service, this same day, at my business address shown above,following ordinary businesspractices. PROOF OF SERVICE BY ELECTRONIC SERVICE (Cal. Rules of Court, rules 2.251(i)(1)(A)-(D) & 8.71(f)(1)(A)-(D).) (Michael Eugene Maas v. Superior Court (People), No. $225109) Furthermore, I, Russell S. Babcock, declare I electronically served from my electronic service address of russbab@gmail.com the above-referenced document on September9, 2015 to the following entities: APPELLATE DEFENDERSINC, eservice-criminal@adi-sandiego.com ATTORNEY GENERAL’S OFFICE, adieservice@doj.ca.gov I declare underpenalty ofperjury under the lawsofthe State of California that the foregoingis true andcorrect. Executed on September9, 2015 {Cp~5VirServersignature
