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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Eleanor Marie NATHAN, Defendant and Appellant.

Crim. C 000007.

Decided: March 12, 1987

Robert J. Peters, under appointment by the Court of Appeal, and Albert W. Brodie, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Maureen A. Daly, Deputy Attys. Gen., for plaintiff and respondent.

In this appeal we decide that the erroneous rejection by the trial judge of a peremptory challenge under Code of Civil Procedure section 170.6 does not require reversal of a judgment of conviction in the absence of prejudice.   Since the error may be rectified by prerogative writ prior to trial (Code Civ.Proc., § 170.3, subd. (d)), it would constitute “a miscarriage of justice” (Cal. Const., art. VI, § 13) to permit a defendant to forego the pretrial remedy, speculate on the outcome of the trial and, if convicted, obtain an automatic reversal of the judgment.   As with any other procedural error which does not go to the fundamental jurisdiction of the court, the question of reversal on appeal should be evaluated in terms of prejudice to the defendant.

A jury found defendant guilty of the first-degree murder of two-year-old Matthew C. (Pen.Code, § 187), mayhem committed on 21–month old Darren McC. (Pen.Code, § 203), 19 counts of felony child abuse (Pen.Code, § 273a, subd. (1)) and 12 counts of misdemeanor child abuse (Pen.Code, § 273a, subd. (2)), the latter as lesser included offenses within charges of felony child abuse.   The thirty-one child abuse convictions involved twenty-eight separate victims in addition to Matthew C. and Darren McC.   The jury found true allegations of intentional infliction of great bodily injury charged in connection with seven counts of felony child abuse.  (Pen.Code, § 12022.7.)   Defendant was found not guilty of two counts of felony child abuse (counts XVIII and XXXII).   The trial court sentenced defendant to consecutive prison terms aggregating 19 years and 4 months on the mayhem and child abuse convictions and a consecutive term of 25 years to life on the murder conviction.

The principle issue on appeal, which we shall deal with in the published part of the opinion, is tendered by the defendant's challenge to the jurisdiction of the trial judge to proceed with trial following rejection of her motion peremptorily to disqualify him under Code of Civil Procedure section 170.6.  We shall conclude that the trial judge had jurisdiction to proceed with the case and that defendant suffered no prejudice from his erroneous denial of her peremptory challenge.   In the unpublished part of this opinion we shall reject all of defendant's remaining contentions.   Accordingly, we shall affirm the judgment.1

Between 1972 and 1981, defendant operated a day care center for young children at three different locations in the San Francisco Bay Area.   The center was located in defendant's South San Francisco home from 1972 to 1975, in Concord from sometime in 1975 through April 1979, and in Clayton between April 1979 and November 1981.   The charged crimes arise out of incidents of child abuse by defendant which occurred in defendant's day care operation when it was located in Concord and in Clayton.



After Judge Tochterman had ruled on pretrial motions, defendant moved to disqualify him peremptorily under Code of Civil Procedure section 170.6.   In support of the motion she declared under penalty of perjury a belief that the judge was prejudiced against her and that she could not receive a fair and impartial trial before him.   Judge Tochterman denied the motion as untimely, ruling that he had already decided contested factual issues relating to the merits.

Defendant did not seek extraordinary writ review of the ruling and the trial proceeded to completion before Judge Tochterman.   On appeal, defendant contends the denial of her peremptory challenge was erroneous, depriving Judge Tochterman of jurisdiction to proceed further in the case.

 Code of Civil Procedure section 170.6 accords a litigant an extraordinary right to disqualify a trial judge.  “The right is ‘automatic’ in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.”  (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531, 116 Cal.Rptr. 260, 526 P.2d 268;  emphasis in original;  see also Solberg v. Superior Court (1977) 19 Cal.3d 182, 193, 137 Cal.Rptr. 460, 561 P.2d 1148.)   Once the litigant timely files a technically sufficient affidavit reflecting a belief that an assigned judge is prejudiced, “the judge must recuse himself without further proof and the case must be reassigned to another judge.”  (Solberg, at p. 187, 137 Cal.Rptr. 460, 561 P.2d 1148.)   By its terms, the statute is applicable to criminal proceedings.  (Ibid.;  McClenny v. Superior Court (1964) 60 Cal.2d 677, 685, 36 Cal.Rptr. 459, 388 P.2d 691.)

Subdivision (2) of section 170.6 reads in pertinent part:  “The fact that a judge ․ 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․”

 There was a pretrial hearing at which Judge Tochterman ruled on the admissibility of uncharged offenses.   Defendant's peremptory challenge under section 170.6 was not timely if that hearing involved a determination of contested fact issues relating to the merits.  (See In re Abdul Y. (1982) 130 Cal.App.3d 847, 857–861, 182 Cal.Rptr. 146;  Brown v. Swickard (1985) 163 Cal.App.3d 820, 825, 209 Cal.Rptr. 844;  Bambula v. Superior Court (1985) 174 Cal.App.3d 653, 656–657, 220 Cal.Rptr. 223.)

Defendant and the Attorney General agree that the hearing in question proceeded under Evidence Code section 403, subdivision (a)(1), which provides:  “(a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when:  [¶] (1) The relevance of the proffered evidence depends on the existence of the preliminary fact;  ․”

The People proffered evidence of uncharged crimes to establish defendant's distinctive modus operandi for child abuse as relevant to prove her identity as the perpetrator of the charged crimes.   The offer of proof was supported by affidavit and by the preliminary hearing transcript.   Defendant opposed admissibility, arguing that the proffered evidence was character evidence inadmissible under Evidence Code sections 1101 and 352.   Defendant did not present any evidence to counter the People's offer of proof.   Since the parties are in agreement that the hearing in this case proceeded under Evidence Code section 403, we do not consider the question whether the resolution of a section 1101 or 352 objection might entail determination of contested fact issues in a proceeding under Evidence Code section 405.

In a hearing under Evidence Code section 403, subdivision (a)(1), the proponent of proffered evidence has the burden of producing evidence as to the existence of a preliminary fact on which relevancy depends.   The evidence is inadmissible “․ unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, ․”  (Evid.Code, § 403, subd. (a).)  Thus preliminary fact questions which fall under subdivision (a) “are not finally decided by the judge” because they are regarded as jury questions involving “the credibility of testimony or the probative value of evidence that is admitted on the ultimate issues.”  (Assem.Com. on Judiciary com., 29B West's Ann.Evid.Code (1966) § 403, p. 267.)   Since it is the jury's function under Evidence Code section 312 to determine the effect and value of the evidence, “the judge's function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question․   If the judge finally determined the existence or nonexistence of the preliminary fact, he would deprive a party of a jury decision on a question that the party has a right to have decided by the jury.”  (Assem.Com. on Judiciary, supra, 29B West's Ann.Evid.Code, § 403, p. 267.) 2

It follows that Judge Tochterman did not resolve a contested fact issue at the Evidence Code section 403 hearing.   Rather, he determined that the proffered evidence of other crimes had a tendency in reason to prove a material fact in issue, other than mere criminal disposition.  (See People v. Thompson (1980) 27 Cal.3d 303, 316, 165 Cal.Rptr. 289, 611 P.2d 883;  Evid.Code, §§ 210, 1101, subd. (a).)  He also weighed probative value against prejudicial effect under Evidence Code section 352 and found the probative value of the evidence “substantial” on an ultimate fact actually in dispute.  (Thompson, at p. 318, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Tassell (1984) 36 Cal.3d 77, 88, 201 Cal.Rptr. 567, 679 P.2d 1.)   In so doing, the judge necessarily examined the similarities between the evidence relating to the charged and uncharged offenses to satisfy himself that the chain of inferences which could be drawn from the proffered evidence to the ultimate fact in issue was reasonably strong.  (See Thompson, 27 Cal.3d at p. 316, 165 Cal.Rptr. 289, 611 P.2d 883.)   He made a determination that the proffered evidence, if believed by the jury, was sufficiently probative to support factual inferences, such as the intermediate fact of a common criminal modus operandi and the ultimate fact of defendant's identity as perpetrator of the crimes charged.  (See Thompson, at p. 315, fn. 14, 165 Cal.Rptr. 289, 611 P.2d 883.)   But he did not determine the truth of any fact, preliminary or otherwise.   As instructed pursuant to a modified version of CALJIC No. 2.50, the jury was charged with the responsibility independently to weigh the evidence of uncharged crimes relative to the issues tendered.

The case of Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 48 Cal.Rptr. 832 illustrates this principle.  Kohn held that a ruling on a Penal Code section 995 motion to set aside an indictment does not involve a determination of a contested fact issue under Code of Civil Procedure section 170.6.   In a 995 proceeding, Kohn reasoned, a court merely applies an external legal standard to test the sufficiency of the evidence.  (Id., at pp. 430–431, 48 Cal.Rptr. 832.)   The court “does not substitute its judgment as to the weight thereof or the credibility of the witnesses who testified at the hearing nor does it resolve conflicting factual contentions [citations].”  (Id., at p. 430, 48 Cal.Rptr. 832.)  “It is not enough that a judge make a determination which relates to contested fact issues.   He must have actually resolved or determined conflicting factual contentions relating to the merits prior to trial before the right to disqualify is lost.”  (Id., at p. 431, 48 Cal.Rptr. 832;  emphasis in original.)

In re Abdul Y., supra, 130 Cal.App.3d 847, 182 Cal.Rptr. 146, is distinguishable.   There, this court held that a pretrial hearing on a minor's motion to suppress his confession precluded the juvenile from later challenging the judge under section 170.6.  Abdul reasoned in part that, in making the determination that the minor's statements were voluntary and otherwise admissible, the juvenile court was “․ required to resolve numerous factual conflicts in the evidence concerning the interrogation, the statements and the minor's state of mind.”  (Id., at p. 858, 182 Cal.Rptr. 146.)   Indeed, the determination of voluntariness as a predicate to admissibility of a confession is a preliminary fact question to be resolved by the trial judge under Evidence Code section 405 (People v. Jimenez (1978) 21 Cal.3d 595, 605, 147 Cal.Rptr. 172, 580 P.2d 672).   Once the trial court has determined that a confession is voluntary and therefore admissible, the jury does not redetermine the voluntariness issue under section 405 (Jimenez, supra, at p. 607, 147 Cal.Rptr. 172, 580 P.2d 672;  see Assem.Com. on Jud. com., 29B West's Cal.Evid.Code, supra, § 405, at pp. 280–282).3

 Since Judge Tochterman did not decide a “contested fact [issue] relating to the merits,” defendant's peremptory challenge was timely and Judge Tochterman erred in refusing to recuse himself.   We conclude however, that the error did not deprive the court of fundamental jurisdiction over the cause.   Since a plenary remedy is available before trial by way of extraordinary writ (Code Civ.Proc., § 170.3, subd. (d)), we hold that an appellant who seeks reversal predicated on the erroneous refusal of the trial judge to recuse himself after a timely challenge under Code of Civil Procedure section 170.6 must show that he was deprived of a fair trial or otherwise suffered actual prejudice as a result of the error.  (Cal. Const., art. VI, § 13;  see People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 165 Cal.Rptr. 851, 612 P.2d 941;  People v. Wilson (1963) 60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452.)

 This Court recently analyzed the jurisdictional implications of an erroneous refusal to recuse:  “In its most fundamental or strict sense, lack of jurisdiction means ‘an entire absence of power to hear or determine the case, an absence of authority over the subject matter or parties.’  (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 [109 P.2d 942] * * *;  see also People v. Padfield (1982) 136 Cal.App.3d 218, 266 [185 Cal.Rptr. 903] * * *.)   But in its ordinary usage the word encompasses many other situations, including judicial acts in excess of jurisdiction.  (Abelleira, supra [17 Cal.2d] at pp. 288–291 [109 P.2d 942].)  While the fundamental type of jurisdiction can never be conferred by consent of the parties, the latter type is often subject to principles of consent and waiver.  (See 1 Witkin, Cal.Procedure (2d ed. 1970) Courts, § 61, pp. 339–340, Jurisdiction, § 10, p. 534.)  [¶] A judge's authority to act, as qualified by Code of Civil Procedure sections 170 and 170.6, implicates the jurisdiction of the court in its ordinary, less strict sense.  (See 1 Witkin, Cal.Procedure (2d ed. 1970) Courts, § 61, pp. 339–340;  see also Abelleira, supra, at p. 289 [109 P.2d 942].)  Although the cases frequently refer to the subsequent orders or judgment of a disqualified judge as absolutely void for lack of jurisdiction and thus open to attack at any time prior to final judgment (see T.P.B. v. Superior Court (1977) 66 Cal.App.3d 881, 885–886 [136 Cal.Rptr. 311] ․;   In re Robert P. (1981) 121 Cal.App.3d 36, 43 [175 Cal.Rptr. 252] ․, it is clear that the right to urge the disqualification of a judge for most causes under section 170 and peremptorily under section 170.6 may be waived by the parties.  (See Central & West Basin Water etc. Dist. v. Wong (1976) 55 Cal.App.3d 191, 194 [127 Cal.Rptr. 448] ․;  Caminetti v. Pac. Mutual L. Ins. Co., supra [1943], 22 Cal.2d [386] at p. 390, 139 P.2d 930;  Whistler v. Ondulando Highlands Corp. (1970) 13 Cal.App.3d 108, 118 [91 Cal.Rptr. 879] ․;  People v. Beaumaster (1971) 17 Cal.App.3d 996, 1009 [95 Cal.Rptr. 360]․)  Consequently, the actions of a disqualified judge are not void in any fundamental sense but at most voidable if properly raised by an interested party.”  (In re Christian J. (1984) 155 Cal.App.3d 276, 279–280, 202 Cal.Rptr. 54;  original italics.)

In other situations where pretrial irregularities in procedure can be waived because they do not implicate the jurisdiction of the court in any fundamental sense, decisional law requires a showing on appeal of actual prejudice in order to secure reversal of a criminal conviction due to the irregularity.  (People v. Memro (1985) 38 Cal.3d 658, 684, 214 Cal.Rptr. 832, 700 P.2d 446 [erroneous denial of pretrial discovery motion];  Pompa-Ortiz, supra, 27 Cal.3d at p. 529, 165 Cal.Rptr. 851, 612 P.2d 941 [erroneous denial of section 995 motion raising procedural irregularity in preliminary examination];  People v. Alcala (1984) 36 Cal.3d 604, 628, 205 Cal.Rptr. 775, 685 P.2d 1126 [erroneous denial of section 995 motion challenging sufficiency of evidence at preliminary hearing];  People v. Wilson (1963) 60 Cal.2d 139, 151–153, 32 Cal.Rptr. 44, 383 P.2d 452;  People v. Johnson (1980) 26 Cal.3d 557, 574, 162 Cal.Rptr. 431, 606 P.2d 738 [erroneous denial of defendant's speedy trial rights].)  On the other hand, article VI, section 13, of the California Constitution does not require a showing of prejudice at the time of pretrial writ review for the obvious reason “there has been no trial and hence no judgment of conviction.”  (Wilson, supra, 60 Cal.2d at p. 152, 32 Cal.Rptr. 44, 383 P.2d 452, construing former art. VI, § 41/212.)   Furthermore, before trial the matter can be expeditiously returned to the trial court for proceedings free of the challenged defect.  (Pompa-Ortiz, supra, 27 Cal.3d at p. 529, 165 Cal.Rptr. 851, 612 P.2d 941.)   This is not possible post judgment.  (See MacLeod, The California Constitution and the California Supreme Court in Conflict Over the Harmless Error Rule (1980) 32 Hastings L.J. 687.)

 A criminal defendant's right peremptorily to challenge a judge is neither greater in degree than nor substantively different from any other nonfundamental error in procedure.  (See Wilson, 60 Cal.2d at p. 152, 32 Cal.Rptr. 44, 383 P.2d 452.)   Like the right to speedy trial examined in Wilson (at pp. 146–147, 32 Cal.Rptr. 44, 383 P.2d 452), peremptory judicial disqualification under Code of Civil Procedure section 170.6 is a personal privilege which may be waived if not asserted in a timely fashion (see discussion, ante, and Solberg v. Superior Court, supra, 19 Cal.3d at pp. 197–198, 137 Cal.Rptr. 460, 561 P.2d 1148).  Section 170.6 is couched in obligatory language, but so also is Penal Code section 1382:  “The court, unless good cause to the contrary is shown, must order the action to be dismissed ․” where the statutorily prescribed time limit for bringing the action to trial is exceeded.  (Wilson, 60 Cal.2d at p. 151, 32 Cal.Rptr. 44, 383 P.2d 452.)   Although neither statute requires an affirmative showing that defendant is prejudiced by the delay, defendant is not relieved on appeal of meeting that burden imposed by article VI, section 13 of the Constitution.  (See Wilson, at pp. 151–152, 32 Cal.Rptr. 44, 383 P.2d 452.)

In upholding the constitutionality of the peremptory disqualification procedure under section 170.6, the Supreme Court in Solberg stressed the importance of the continuing vigilance of the courts to enforce statutory restrictions on the time within which a peremptory challenge may be brought.   (Supra, 19 Cal.3d at pp. 197–198, 137 Cal.Rptr. 460, 561 P.2d 1148.)   In this regard, the Solberg court quoted the warning expressed in McClenny v. Superior Court, supra, 60 Cal.2d at p. 689, 36 Cal.Rptr. 459, 388 P.2d 691:  “ ‘We cannot ignore ․ the potentiality for abuse of section 170.6.  We cannot permit a device intended for spare and protective use to be converted into a weapon of offense and thereby to become an obstruction to efficient judicial administration.’ ”  (Solberg, 19 Cal.3d at p. 198, 137 Cal.Rptr. 460, 561 P.2d 1148;  see also In re Christian J., supra, 155 Cal.App.3d at p. 279, 202 Cal.Rptr. 54.)

Since an expeditious remedy by prerogative writ is readily available to remove a disqualified judge, it would constitute an intolerable windfall to permit a defendant to forego that remedy in order to speculate on the outcome of the criminal proceedings and reap the benefit of automatic reversal if the jury's verdict is unfavorable to him.  (See Luce v. United States (1984) 469 U.S. 38, 42, 105 S.Ct. 460, 463, 83 L.Ed.2d 443, 448.)   Such a rule would exact a profound cost from the judicial system not only in terms of efficiency but also in diminishing public confidence and would have particularly egregious consequences in cases such as this where jury trial spanned a period of more than five months during which numerous child witnesses underwent the harrowing ordeal of testifying.

 Although subdivision (1) of section 170.6 speaks generally of establishing by affidavit that the judge in question “is prejudiced,” subdivision (2) of the section makes clear that the affidavit is simply a formal means of expressing a belief the judge is prejudiced.  (Solberg, supra, 19 Cal.3d at p. 193, 137 Cal.Rptr. 460, 561 P.2d 1148.)   The equation of the belief upon which a peremptory challenge is predicated with actual bias or prejudice is a fiction we do not indulge.  (Ibid.)  Since belief alone justifies disqualification under the statute and defendant has made no greater showing on this record, the circumstances here do not establish Judge Tochterman's prejudice as a fact.4

 Moreover, a careful examination of the record provides not the slightest hint that judicial partiality infected the trial.   There is no indication whatsoever of judicial misconduct.   Although the judge exercised some degree of discretion in the evidentiary rulings and other matters before him, it is sheer speculation to assume that the outcome of these rulings somehow influenced defendant's conviction.   All the judicial rulings were well within the range of proper discretion.   Finally, it was the jury, not the judge, which found defendant guilty of the crimes charged.


The judgment is affirmed.


1.   The Reporter of Decisions is directed to publish all of this opinion except Parts I and III through VII.

2.   Section 403 preliminary fact determinations are distinct from preliminary fact determinations under Evidence Code section 405.  (See 9 Wigmore on Evidence (1981) § 2550, p. 641;  McCormick on Evidence (3d ed. 1984) § 53, p. 137.)   Under section 405, the judge's rulings on preliminary fact questions are final and the jury does not redetermine the issue.  (Assem.Com. on Judiciary com., 29B West's Ann.Evid.Code, supra, § 405, pp. 277, 281.)

3.   The legislative distinction between legal and factual determinations for section 170.6 purposes is grounded in a policy against judge shopping.  (See Abdul, supra, 130 Cal.App.3d at p. 861, 182 Cal.Rptr. 146;  Jacobs v. Superior Court (1959) 53 Cal.2d 187, 191, 1 Cal.Rptr. 9, 347 P.2d 9.)   Whereas the resolution of a contested fact obviously may vary depending on the inferences drawn by the factfinder, questions of law theoretically have but one resolution under controlling authority, no matter who decides them.  (See People v. Richard (1978) 85 Cal.App.3d 292, 299, 149 Cal.Rptr. 344.)

4.   Actual bias or prejudice of the trial judge deprives a criminal defendant of his due process right to a fair and impartial trial.  (Garcia v. Superior Court (1984) 156 Cal.App.3d 670, 676, 203 Cal.Rptr. 290.)   Where bias of the trial judge is established, prejudice is presumed (Vasquez v. Hillery (1986) 474 U.S. 254 [106 S.Ct. 617, 623, 88 L.Ed.2d 598, 609] ).

FOOTNOTE.   See footnote 1, ante.

PUGLIA, Presiding Justice.

REGAN, J., concurs. BLEASE, J., I concur in the judgment and in the opinion, except that with respect to Part V of the unpublished portion of the opinion, I concur in the result.