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Court of Appeal, Third District, California.

Christian Dean BOWERS, Petitioner, v. The SUPERIOR COURT of Nevada County, Respondent; The PEOPLE, Real Party in Interest.

No. C026887.

Decided: March 17, 1998

Roeser & Roeser and Michael J. Roeser, Zephyr, NV, for Petitioner. James G. Flageollet, County Counsel, Harold E. DeGraw, Assistant County Counsel, and Mark W. Rathe, Nevada City, for Respondent. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, and J. Robert Jibson and Stan Cross, Supervising Deputy Attorneys General, for Real Party in Interest.

For criminal defendants in the Truckee Branch court of Nevada County, Judge C. Anders Holmer is the only show in town.   As a result of state-mandated consolidation of municipal and superior courts, the Truckee Branch is a “unified court” and Judge Holmer serves both as the magistrate in the municipal court and the only sitting judge in superior court.

On this petition for writ of mandate, we are called upon to decide whether, in a court where only one judge sits at both levels of a criminal prosecution, a defendant who fails to exercise a peremptory challenge under Code of Civil Procedure section 170.6 (section 170.6) at the preliminary hearing may still exercise such a challenge when he is bound over for trial before the same judge in superior court.   We find that, under the circumstances of this case, the “all purpose assignment” rule governs, and petitioner's failure to challenge Judge Holmer at the preliminary hearing rendered his subsequent 170.6 challenge to the judge in superior court untimely.


The agreed facts for purposes of this writ petition may be summarized as follows:

 As the result of statewide legislatively mandated court unification and consolidation (see Gov.Code, § 68112 et seq.), Nevada County has six departments -- three departments of the superior court, two departments of the municipal court and the Truckee Branch, which is a “unified court” hearing all municipal court and superior court matters originating in Truckee.1  Judge Holmer is the only assigned judge of the Truckee Branch.  (Local Rules, rule 2.09.)

A four-count felony complaint was filed against petitioner Christian Bowers in the Truckee Branch court on March 19, 1997 (all further calendar references are to that year).2  He was arraigned before Judge Holmer and pleaded not guilty to the charges on March 25.

A preliminary hearing was held before Judge Holmer on May 20.   In his capacity as magistrate, Judge Holmer held Bowers to answer on two of the four counts.   Arraignment for trial in superior court was scheduled for June 17 before the same Judge Holmer.

On May 21, the district attorney filed a two-count felony information against Bowers in superior court.

On the day of his superior court arraignment, June 17, Bowers filed an affidavit of prejudice seeking to disqualify Judge Holmer under section 170.6.   The judge denied the challenge as untimely, since the Truckee Branch was a consolidated court where the same judge conducts both the trial and preliminary hearing, and Bowers had failed to assert a 170.6 challenge at the preliminary hearing.


Bowers immediately filed a petition for writ of mandate with this court, seeking to compel Judge Holmer to honor the section 170.6 challenge and disqualify himself from further proceedings.   Bowers also requested that we order criminal proceedings stayed pending a ruling on the petition.   Real party in interest, the People of the State of California, sided with Bowers and urged us to grant the relief requested.   Respondent Nevada County Superior Court (the County) opposed the petition.

We denied the petition and request for stay by order filed July 24.   On July 31, the People filed a petition for review with the California Supreme Court.   On October 1, the Supreme Court granted review and transferred the cause back to this court, with directions to vacate the order denying mandate, issue the alternative writ and place the matter on calendar.   We have so ordered.



Before reaching the merits, we must address the County's request that we dismiss the petition as moot due to the fact that (1) the underlying criminal action has since been dismissed, and (2) coordination and consolidation of California trial courts is currently in a state of flux and any opinion we give here might be mooted by future legislation.

 As the criminal action against Bowers is no longer pending, he is not an interested party to this proceeding, although the People have since taken up the banner on his behalf.   Generally, appellate courts are not in the business of issuing advisory opinions.  “It is well settled that an appellate court will decide only actual controversies.   Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.”  (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10, 244 Cal.Rptr. 581.)

 Dismissal for mootness is discretionary, however.   A well recognized exception to the rule exists where the question to be decided is of general public interest affecting parties beyond those in the present litigation and the question presented is one capable of repetition yet evading review.   In such case the reviewing court may refuse to dismiss, even though intervening events have rendered relief moot.  (E.g., In re John W. (1996) 41 Cal.App.4th 961, 969, 48 Cal.Rptr.2d 899;  see generally Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8, 31 Cal.Rptr.2d 776, 875 P.2d 1279, and cases cited therein.)

 While the County presents plausible reasons why we should dismiss the petition as moot, we feel constrained to decline the invitation because we perceive the California Supreme Court has already determined that dismissal for mootness is not appropriate here, as shown by the following chronology of events.

The People petitioned for Supreme Court review of our denial of Bowers's petition on July 31.   In a letter to Chief Justice George dated August 20, the County advised the Supreme Court that the issue presented by the petition had been rendered moot by the fact that, due to the time estimate of two days for trial, the case had been taken away from Judge Holmer and assigned to a different judge.   Nevertheless, on October 1, the Supreme Court issued an order signed by all seven justices granting review and transferring the matter to this court for calendaring.

Thus, five weeks after having been advised that the relief requested by the petition had been mooted by the assignment of the case to a new judge, the Supreme Court nevertheless granted review and ordered us to hear the case.

Although sometimes the Supreme Court is less than clear about its intentions, the tea leaves in this instance are not difficult to read.   In view of the advent of consolidation and unification of county courts, the question presented is one of importance to counsel and courts throughout the state.   Further, because of the rapid pace of trial assignments, the narrow window period in which to make section 170.6 challenges and the expense involved in taking a petition for writ of mandate, the issue is likely to arise again, with scant opportunity for appellate review.   It is apparent that the Supreme Court believes the “public interest” exception to the mootness doctrine should apply and that the merits of the petition should be addressed.   We agree with the unspoken message behind the Supreme Court's order, and decline to dismiss for mootness.


Section 170.6 Overview

Section 170.6, provides that a judge, commissioner or referee shall not try or hear any matter in any action or special proceeding when a party or an attorney appearing in the action makes a motion supported by an affidavit stating a belief that the judicial officer is prejudiced against the party or attorney.  (§ 170.6, subds. (1) & (2).) 3

 “As a general rule, a challenge of a judge is permitted under section 170.6 any time before the commencement of a trial or hearing.  [Citations.]  ․ Subdivision (2) of section 170.6, however, establishes three exceptions to the general rule, namely, the '10-day/5-day' rule, the ‘master calendar’ rule, and the ‘all purpose assignment’ rule.”  (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171, 17 Cal.Rptr.2d 815, 847 P.2d 1031 (Lavi ).)

 “[F]or any given factual scenario, it must be determined whether any of section 170.6, subdivision (2)'s pertinent exceptions (the 10-day/5-day rule, the master calendar rule, or the all purpose assignment rule) are applicable, or whether the general rule (the commencement of trial rule) should apply.”  (Lavi, supra, 4 Cal.4th at p. 1172, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)

If the all purpose assignment rule governs, Bowers's failure to file a section 170.6 affidavit against Judge Holmer at the preliminary hearing rendered his subsequent challenge to the judge untimely and our inquiry proceeds no further.   We therefore examine the rule against this factual background.


The All Purpose Assignment Rule

Section 170.6 states that “[i]f directed to the trial of a cause which has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance.”  (Italics added.)

 “Section 170.6, subdivision (2), does not explain when an assignment to a judge may be deemed one for all purposes.”  (Lavi, supra, 4 Cal.4th at p. 1179, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)   However, it seems clear that the rule “'contemplates assignment to a specific judge to process the litigation in its totality rather than a trial department in which the identity of the judge is subject to the vagaries of personal and administrative necessity.”'  (Ibid., quoting Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 421, 241 Cal.Rptr. 818.)

 The all purpose assignment rule applies to criminal as well as civil cases.  (Lavi, supra, 4 Cal.4th at pp. 1178-1179, fn. 9, 17 Cal.Rptr.2d 815, 847 P.2d 1031.) In Lavi, the California Supreme Court enunciated a two-part test for determining whether a case assignment will be considered an all purpose assignment:  (1) the method of assignment must “instantly pinpoint” the judge whom the parties can expect to preside at trial, and (2) the same judge must be expected to “process the case ‘in its totality.”’  (Id. at p. 1180, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)

Rule 2.06A of the Local Rules calls for five judges to be permanently assigned to the courthouse in Nevada City and one judge to be permanently assigned to the Truckee Branch.   Any case arising from a residence or occurrence in the Truckee jurisdiction must be filed in the Truckee Branch.  (Local Rules, rule 2.06C.)   Local rule 2.09 provides that the Truckee Branch “is a unified court generally hearing all Municipal and Superior Court matters originating in Truckee.”  (Italics added.)   The rules specify Judge Holmer by name as the only judge sitting in the Truckee Branch.4

 Hence, when Bowers appeared before Judge Holmer sitting as a magistrate at the Truckee Branch he knew, or in the exercise of reasonable diligence should have known, that (1) Judge Holmer would be presiding over the preliminary hearing and making the determination of whether Bowers should be held to answer on any of the charges in superior court;  and (2) in the event there was found sufficient evidence to bind him over for trial, the same Judge Holmer would be presiding over his trial in superior court.

Under Lavi, the assignment of the case to Judge Holmer for the preliminary hearing was an all purpose assignment within the meaning of the rule, because the judge's identity for all purposes was “either known to the litigant or discoverable on reasonable inquiry” and there was a “reasonable certainty” the same judge would preside over the case through judgment and sentence.  (4 Cal.4th at pp. 1180, fn. 12, 1185, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)

 The fact that the case could conceivably have been reassigned to a different judge for trial does not defeat the applicability of the all purpose assignment rule.   As the Supreme Court observed, to decline to give effect to the rule based solely on the speculative possibility that a particular judge may not ultimately hear the case due to a variety of reasons, would effectively render the timeliness requirements of section 170.6 meaningless.  (Lavi, supra, 4 Cal.4th at p. 1183, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)

We conclude the all purpose assignment rule applies.   It was thus incumbent upon Bowers to assert any section 170.6 challenge within 10 days of notice of the assignment.   Those 10 days elapsed either on April 4 (10 days after his arraignment before Judge Holmer on the complaint), or May 30 (10 days after the commencement of the preliminary hearing).   In either event, Bowers's June 17 affidavit, purporting to exercise a section 170.6 challenge to Judge Holmer, was untimely.5


The People's Argument

 The People do not directly dispute the material facts set forth above.   Taking a different approach, the People argue that the preliminary hearing was simply not part of Bowers's criminal prosecution.   Their theory is that felony criminal proceedings are commenced, not with the filing of the complaint in municipal court, but with the filing of an information (or indictment) in superior court.   The People point out the purpose of a preliminary hearing is simply to determine whether a criminal case should go forward at all, likening it to a Fourth Amendment probable cause hearing.   Since a party is permitted to assert a section 170.6 challenge at trial against a judge who has previously heard preliminary motions or pretrial hearings in the case not involving contested fact issues (§ 170.6, subd. (2), quoted in fn. 3 ante, pp. 563-564;  Bambula v. Superior Court (1985) 174 Cal.App.3d 653, 656-657, 220 Cal.Rptr. 223;  People v. Whitfield (1986) 183 Cal.App.3d 299, 305-306, 228 Cal.Rptr. 82), the People conclude a party may, at its option, withhold a section 170.6 challenge to a judge who presides as magistrate at the preliminary hearing and still raise it when appearing before the same judge for trial.

 A 1980 opinion of the Attorney General, Disqualifying Judges, 63 Ops.Cal.Atty.Gen. 801 (1980), controverts the People's claim, and analyzes a preliminary examination and a trial as inextricable parts of a one prosecution, such that a party may only assert one section 170.6 challenge throughout the course of the proceeding.   The opinion points out that a criminal complaint before the magistrate is an accusatory pleading that commences the inquiry into whether the defendant may be subjected to a criminal trial.  (Pen.Code, § 806.)   Moreover, an improper denial of a section 170.6 challenge at the preliminary hearing has been held to constitute the denial of a substantial right to the defendant, rendering a subsequent holding order void.   (McCauley v. Superior Court (1961) 190 Cal.App.2d 562, 565, 12 Cal.Rptr. 119.)   Thus, “for purposes of Code of Civil Procedure section 170.6, a preliminary examination which results in the defendant being bound over for trial in the superior court is part of the same criminal action as the trial.”  (63 Ops.Cal.Atty.Gen., supra, at p. 805.)   The opinion concludes that a judge sitting as a magistrate who is challenged at the preliminary hearing may not try the case, and further, the party who exercises a section 170.6 challenge at the preliminary hearing stage may not exercise a second such challenge against the trial judge.  (63 Ops.Cal.Atty.Gen., at p. 801.)

Le Louis v. Superior Court (1989) 209 Cal.App.3d 669, 257 Cal.Rptr. 458 supports this analysis.   Defendant Le Louis filed a section 170.6 declaration in municipal court disqualifying the magistrate from acting in the case.   After a preliminary hearing, he was held to answer by another magistrate and ordered to appear in superior court where his case was assigned to a Judge Randall.   Le Louis then filed a section 170.6 challenge to Judge Randall, who refused to disqualify himself, concluding that the defendant had already exhausted his single section 170.6 challenge.   Le Louis sought a writ of mandate to compel the disqualification, asserting that a preliminary hearing and a trial were two separate proceedings, that the filing of the information in superior court commenced a “distinct criminal action” and was therefore properly subject to a fresh challenge to the assigned judge under section 170.6.  (Le Louis, supra, at p. 676, 257 Cal.Rptr. 458.)

The Court of Appeal rejected the theory.  “[T]he Penal Code defines a ‘criminal action’ as ‘[t]he proceeding by which a party charged with a public offense is accused and brought to trial and punishment ․’  (Pen.Code, § 683, italics added.)   The accusatory pleading includes an indictment, an information, and a complaint filed with a magistrate charging a public offense of which the superior court has original trial jurisdiction.  (Pen.Code, § 691, subd. (d).)  A ‘criminal proceeding’ has been defined as some authorized step taken before a judicial tribunal against some person or persons charged with the violation of some provision of the criminal law.  [Citation.]   Similarly, a preliminary examination is an authorized step taken before a judicial tribunal by which a party charged with a public offense is accused and brought to trial and punishment.  (Pen.Code, §§ 683, 738.)  ․ [A] preliminary examination can only be properly conceived as a component proceeding of the criminal action which commences with the filing of a complaint and can continue through superior court proceedings, including trial, resulting in judgment.   Petitioner's preliminary examination occurred at an earlier stage of the same prosecution which remains pending against him in superior court.   This is true even though the action now bears a different docket number than the one assigned at the municipal court level.”  (Le Louis, supra, 209 Cal.App.3d at pp. 678-679, 257 Cal.Rptr. 458, last italics added.)   The court concluded that a party in a criminal prosecution may make a section 170.6 challenge either at the preliminary hearing or at the trial, but not both.  (Le Louis, supra, at p. 679, 257 Cal.Rptr. 458.)

The People cite Flores v. Superior Court (1991) 226 Cal.App.3d 797, 277 Cal.Rptr. 90 as mandating a contrary result.   In Flores, the defendant was subject to a preliminary hearing before a magistrate and was bound over for trial before Judge Coen's department, a disposition which, under Los Angeles County Superior Court Local Rules, constituted an all purpose assignment.   Two weeks later, the defendant appeared for his arraignment before Judge Coen and filed a section 170.6 affidavit seeking to disqualify him.  (Flores, supra, at p. 799, 277 Cal.Rptr. 90.)   The Court of Appeal, without analysis and with one citation to People v. Case (1980) 105 Cal.App.3d 826, 164 Cal.Rptr. 662, held that since the criminal proceeding was not commenced by the filing of the complaint with a magistrate but by the filing of the information in superior court, the all purpose assignment rule was inapplicable.  (226 Cal.App.3d at p. 799, 277 Cal.Rptr. 90.)

Flores's reliance on Case is misplaced however, because Case involved a peculiar issue having to do with arrest warrants, not peremptory challenges.   In Case, the defendant raised the extraordinary argument that an arrest warrant was invalid unless criminal proceedings have been “initiated” by the filing of a complaint in municipal court.   The argument rested on the sophistic assumption that the word “complaint” in the statute authorizing arrest warrants (Pen.Code, § 813) was the same “complaint” which must be filed with a magistrate to commence a felony prosecution (Pen.Code, § 806).  (105 Cal.App.3d at pp. 830-831, 164 Cal.Rptr. 662.)

Case quickly disposed of that claim by pointing out the word “complaint” for purposes of issuing arrest warrants meant the attesting officer's affidavit, not the accusatory pleading filed with the magistrate in municipal court.   In dicta, the court went on to comment that “[t]he only method of initiating a criminal proceeding in California is the filing of an accusatory pleading in the court having trial jurisdiction over the charged offense,” which meant an indictment or information in felony cases.  (105 Cal.App.3d at p. 833, 164 Cal.Rptr. 662, italics in original.)  “Neither the preliminary hearing nor the proceedings before a grand jury amount to the ‘institution of criminal proceedings.’   They are, instead, inquiries into whether there is available sufficient evidence to warrant the institution of criminal proceedings.”  (Id. at p. 834, 164 Cal.Rptr. 662.)

Because Flores placed improper emphasis on the semantic dictum in Case, it cannot support the proposition that a preliminary hearing before the magistrate and a trial in superior court are independent proceedings for purposes of applying section 170.6.   On the contrary, each is an integral component of a single process for prosecuting felonies, under which an accusatory pleading is filed with the magistrate, a probable cause determination is made, the defendant is brought to trial, and judgment is rendered.  (Pen.Code, §§ 806, 813, 859a, 859b, 948-1170 et seq.)   Thus, where a judge is given the case to handle from the preliminary hearing forward, the all purpose assignment rule applies.6

We conclude a party exercising a section 170.6 challenge in a court where it is known that the same judge will act both as magistrate at the preliminary hearing and as the trial judge is subject to the all purpose assignment rule, and must act to disqualify the judge under that section within 10 days after notice of the assignment.   He may not, as Bowers apparently sought to do here, “test the waters” by accepting the judge through the preliminary hearing stage, and then filing a section 170.6 affidavit when appearing before the same judge for trial.


The petition is denied.   The alternative writ is discharged.


1.   Pursuant to Nevada County's request and Evidence Code sections 452, subdivision (d) and 459, subdivision (a), we take judicial notice of (1) Nevada County's Local Rules of Court (Local Rules), and (2) the Unification Agreement for the Nevada County Superior Court and Municipal Court.

2.   Local rule 2.06 provides that any case venued in Nevada County which “arises from an occurrence or residence in Truckee shall be filed in Truckee.”

3.   We quote the relevant text of section 170.6:“(1) No judge, court commissioner, or referee of any superior, municipal or justice 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 which involves a contested issue of law or fact when it shall be established as hereinafter provided that the judge or court commissioner is prejudiced against any party or attorney or the interest of any party or attorney appearing in the action or proceeding.“(2) Any party to or any attorney appearing in any such 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, court commissioner, or referee before whom the action or proceeding is pending or to whom it is assigned is prejudiced against any such 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, court commissioner, or referee.   Where the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date.   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.   If directed to the trial of a cause which has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance.   If the court in which the action is pending is authorized to have no more than one judge and the motion claims that the duly elected or appointed judge of that court is prejudiced, the motion shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion․   In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be.   The fact that a judge, court commissioner, or referee has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time and in the manner hereinbefore provided.”

4.   The County's rules are consonant with Government Code section 68112, which requires each county to submit a trial court coordination plan “designed to achieve maximum utilization of judicial and other court resources․”  (Subd. (a).)  Such a coordination plan shall conform to standards adopted by the Judicial Council which “shall include, but not be limited to, the following:  [¶] ․ [¶] ․ The assignment of any type of case to a judge for all purposes commencing with the filing of the case and regardless of jurisdictional boundaries.”   (Subd. (b)(5), italics added.)

5.   We recognize the petitioner's situation does not fit as squarely into the rule as in the case, for example, where a complex civil action is expressly assigned by the master calendar department to a specific judge “for all purposes.”   However, section 170.6, subdivision (2) provides that “In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be.”   Thus, if the facts are most closely analogous to an all purpose assignment, the rule applies.  (Lavi, supra, 4 Cal.4th at p. 1178, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)

6.   The People cite numerous authorities to the effect that section 170.6 authorizes a peremptory challenge at trial even where the challenged judge has already conducted a pretrial hearing not involving contested fact issues going to the merits of the case.  (§ 170.6, subd. (2) quoted in fn. 3 ante, pp. 563-564.)   Since a preliminary hearing does not involve such fact issues (People v. DeJesus (1995) 38 Cal.App.4th 1, 15, 44 Cal.Rptr.2d 796 [“ ‘․ the magistrate is not a trier of fact ’ ” (emphasis in original) ] ), the People reason that the challenge may be withheld during the preliminary hearing without forfeiting the right to assert it at the time of trial.The argument rests on a false premise.   Our conclusion that Bowers's challenge was untimely rests squarely on the fact that it was not brought within the 10-day period prescribed by the all purpose assignment rule, not on the ground that Judge Holmer had previously held a hearing involving contested factual issues.

CALLAHAN, Associate Justice.

BLEASE, Acting P.J., and MORRISON, J., concur.