BRANDON v. THE PEOPLE (2011)

OPINION AND ORDER

GRANTING PEREMPTORY

WRIT OF MANDATE

The juvenile court abused its discretion in striking Brandon M.'s peremptory challenge to Referee Shep Zebberman.¹  The prosecution aptly concedes that the peremptory challenge should have been accepted and accordingly, the petition is granted.

FACTUAL AND PROCEDURAL BACKGROUND

Minor Brandon M. is 15 years old.

In the County of Sonoma, a Welfare and Institutions Code section 602 petition was filed alleging that on or about December 18, 2010, Brandon unlawfully possessed a controlled substance, to wit, Ecstacy, in violation of Health and Safety Code section 11377, subdivision (a), a misdemeanor.

On April 18, 2011, in Sonoma, Brandon waived his rights and admitted the petition.   The juvenile court sustained the petition.

On April 19, 2011, the matter was ordered transferred to Los Angeles County pursuant to Welfare and Institutions Code section 750, for disposition, because Brandon's guardian resided in Los Angeles County.

On May 12, 2011, Brandon first appeared in Los Angeles County in Department 204 of the juvenile court, before Referee Shep Zebberman.   On that date, Brandon filed his challenge disqualifying Referee Zebberman pursuant to Code of Civil Procedure 2 section 170.6.   The referee accepted the challenge and transferred the matter to Department 202 of the Los Angeles Superior Court, before Judge Robin Miller Sloan, judge for all purposes, for May 18, 2011.

On May 18, 2011, Judge Sloan ordered the challenge to Referee Zebberman stricken because the case was “post-admission” and sent the matter back to Referee Zebberman's court for disposition.   Brandon filed a second section 170.6 challenge, which was denied.   The matter was set for a contested disposition hearing before Referee Zebberman on June 23, 2011 in Department 204.

This Court issued a stay of the disposition hearing.

DISCUSSION

Referee Zebberman should have been disqualified and Brandon is entitled to have all further proceedings heard by another judge, as the prosecution concedes.

“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.”  (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171.)

It is undisputed that Referee Zebberman had not made any rulings on Brandon's matter before May 12, 2011, thus the filing of the motion to disqualify by Brandon on May 12th was timely.   According to case law and section 170.6, subdivision (a)(2), section 170.6, subdivision (a)(1) provides that once a timely motion to disqualify has been filed against a judge or referee, the case must be immediately transferred to a new court, unless the judge or referee has already ruled on a contested issue of law or fact.

The issue in this case is whether or not Brandon timely moved to disqualify Referee Zebberman from presiding over the disposition hearing upon receipt of the case from Sonoma County.   Brandon entered his plea of guilty in Sonoma County, a separate and distinct county, and he filed his motion for disqualification the first day the case was in juvenile court in Los Angeles County.   Brandon's motion was timely.   Hence, Referee Zebberman was required to recuse himself and Judge Sloan was required to assign the cause to another judge.

DISPOSITION

THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of May 18, 2011, striking Brandon's motion to disqualify Referee Zebberman and to issue a new and different order granting same, in Los Angeles Superior Court case No. FJ48705, entitled The People of the State of California v. Brandon M.

The temporary stay order is hereby terminated.

NOT TO BE PUBLISHED

_ _

MALLANO, P.J. ROTHSCHILD, J. JOHNSON, J.

FOOTNOTES

FN1. As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.”  (Code Civ. Proc., § 1088;  Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1237–1238;  Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240–1241;  Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222–1223;  Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)   Opposition was requested and the parties were notified of the court's intention to issue a peremptory writ.  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.).  FN1. As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.”  (Code Civ. Proc., § 1088;  Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1237–1238;  Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240–1241;  Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222–1223;  Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)   Opposition was requested and the parties were notified of the court's intention to issue a peremptory writ.  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

FN2. Unless otherwise indicated, all further statutory proceedings are to the Code of Civil Procedure..  FN2. Unless otherwise indicated, all further statutory proceedings are to the Code of Civil Procedure.