PEOPLE v. LARRY (1991)

Defendant appeals after being convicted by a jury of one count of forcible rape (§ 261, subd. (2)) ² and one count of forcible lewd and lascivious conduct on a child under the age of 14 (Pen.Code, § 288, subd. (b)) and sentenced to an aggregate prison term of 16 years.   The victim in both offenses was defendant's 12–year–old daughter, Tia.

On appeal, he asserts:  (1) the trial judge, the Honorable Stanley Young, was ineligible to preside over defendant's trial having automatically resigned as a judge by his election to public office as a school board trustee;  (2) the court erred in permitting expert psychological testimony;  (3) evidence of other uncharged acts was erroneously admitted;  (4) defendant did not receive the effective assistance of counsel;  (5) the court aligned itself with the prosecution in its questioning of witnesses;  (6) instructional error occurred;  (7) the court erred in denying defendant's motion for new trial;  and (8) the sentence imposed violated section 654.   We shall affirm the judgment.

In the published portion of this opinion we address the issue of Judge Young's purported disqualification to sit as a superior court judge during defendant's trial.   In the unpublished part we reject or eschew as harmless error the remainder of defendant's contentions.

FACTUAL AND PROCEDURAL BACKGROUND *

DISCUSSION

I. Judge Young's status at time of trial 4

Article 6, section 17 of the California Constitution provides in relevant part:  “A judge of a court of record may not practice law and during the term for which the judge was selected is ineligible for public employment or public office other than judicial employment or judicial office, ․ A judge of a trial court of record may, however, become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy.   Acceptance of the public office is a resignation from the office of judge ․”  (Emphasis added;  this provision is hereinafter referred to as “article 6, section 17.”)

Relying on this provision, defendant contends Judge Young was ineligible to preside over his trial in December 1988 as one month earlier Judge Young had been elected to a position as a trustee of the Feather River Community College Board.⁵

Our courts have not previously construed the automatic-resignation from judicial office provision of article 6, section 17.

 We conclude Judge Young, pursuant to the constitutional provision, did resign the office of superior court judge when he took the oath and accepted the office of a school board trustee after being elected to such position.   We further conclude that Judge Young was acting as a de facto judge of the Plumas County Superior Court subsequent to his automatic resignation as judge and during the trial proceedings at issue herein.   Defendant is therefore precluded from collaterally attacking either Judge Young's authority to preside over the trial or the rulings made by Judge Young during that proceeding.

The goals served by article 6, section 17 were explained in Alex v. County of Los Angeles (1973) 35 Cal.App.3d 994, 111 Cal.Rptr. 285:  “The inherent nature of the judicial function demands it be divorced from the political arena to avoid exposure to possible conflicts of interest and political influence.   The provision in its wisdom seeks to eliminate the risk of judges' decisions being subconsciously and improperly influenced by considerations of the effect of a popular or unpopular ruling on [the judge's] candidacy for public office, being aware that [these] decisions may be reported by the news media or used by [a] political adversary.

“In addition, the courts are inextricably married to the clock and calendar.   Like a train, the court must start and run on schedule to accommodate the public and attorneys using the courts to dispose of their legal matters.   It is common knowledge that a hard fought political campaign makes demands on the candidate which cut deeply into the working day․

“Thus the compelling, legitimate state purpose and policy underlying the provision ․ are (1) to save the judges from the ‘entanglements, at times the partisan suspicions' which may result when a judge engages in the extrajudicial activity of campaigning for public office;  and (2) ‘to conserve the time of the judges for the performance of their work’ so as not to ‘embarrass, if not in fact impede, the orderly and proper discharge of their judicial functions.’  [Citation.]”  (Id. at p. 1001, 111 Cal.Rptr. 285.) ⁶

On November 8, 1988, Judge Young was elected to the position of a trustee on the Feather River Community College Board (Board).   On November 22, 1988, Judge Young took the oath for that office, accepted the office and was elected by the Board to serve as its vice-president.   Shortly thereafter, Judge Young apparently became aware of the provisions of article 6, section 17 and on December 2, 1988, he resigned from the Board.   Defendant's trial began four days later.⁷

Defendant contends that pursuant to article 6, section 17, Judge Young must be deemed to have resigned his position as judge when he took his oath of office for the Board and therefore Judge Young was ineligible to preside over defendant's trial.⁸  Inferentially, defendant contends his conviction and sentence are void for lack of jurisdiction by reason of a nonjudicial officer conducting the trial.

The People respond that Judge Young remained a legitimate judge of the Plumas County Superior Court because he was never validly elected to the Board position.   The argument is that article 6, section 17 specifies that to be eligible for election to other public office, a judge must take a leave of absence without pay prior to filing a declaration of candidacy.   The People contend Judge Young never took such a leave of absence to run for the Board.   Relying on out-of-state cases, the People assert Judge Young's election to the board was invalid and Judge Young was therefore entitled to retain his judicial seat.   This argument is unpersuasive.

The basis of the People's argument is the assertion that Judge Young failed to comply with the pre-election leave of absence requirements of this provision.   However, the record contains no evidence on this point.   There is nothing in the record that Judge Young did or did not take a leave of absence.   We could not adopt the People's position given the evidentiary void in the record.   One can only speculate that Judge Young did not take the requisite leave.

We turn to two of the out-of-state cases relied upon by the People which are representative of the analysis employed in the other cited cases.

In State ex rel. Van Antwerp v. Hogan (1969) 283 Ala. 445, 218 So.2d 258, an Alabama state legislator was appointed to a judicial position.   State constitutional provisions precluded anyone from holding more than one office at the same time and prohibited judges from holding any other office during their judicial terms.   The court concluded that having accepted a judicial appointment, the legislator had vacated his legislative office and would be ineligible to hold any additional office while serving as a judge.  (Id. 218 So.2d at p. 266.)

In dicta, the Van Antwerp court commented:  “A reading of ․ the [Alabama] Constitution shows that the judicial officers named therein are made ineligible, and are disqualified to hold any other office of profit or trust except another judicial office, during the term for which they are elected or appointed.  [¶] Being ineligible and disqualified to hold any other public office of profit or trust, other than judicial during the term for which he is elected or appointed, an attempted occupancy of a second public office of profit or trust by any of the judicial officers named in [this constitutional provision] would be a nullity, and if by color of election or appointment to a second office, he attempts to hold the second office, he will be removed from it.

“This, for the reason that the rule of ipso facto vacancy of a state office of profit by acceptance of a second office of profit does not apply where under applicable constitutional or statutory provisions the holder of a public office is rendered ineligible for a specified time for a second public office.   Under such circumstances it is the second office which is considered vacant rather than the first office.  [Citations.]”  (Id. 218 So.2d at pp. 265–266.)

Similarly, in a Maryland case, Hetrich v. County Com'rs of Anne Arundel County (1960) 222 Md. 304, 159 A.2d 642, a county commissioner accepted an appointment as the county business manager and attempted to perform both offices.   The court found these offices to be incompatible and noted:  “The general rule at common law is that if an officer accepts a second office which is incompatible with the first, he vacates the first.  [Citation.]  Many courts have adopted a qualification to the general rule if the one who accepted the second office was ineligible for that office.   It is held in such instances that the attempted appointment was void, a nullity, and that the second acceptance was illusory, ․” (Id. 159 A.2d at p. 644.)

The court continued:  “It has been held expressly in various instances in which the appointee to the second office was ineligible for appointment that purported acceptance of the second did not vacate the first.”  (Id. 159 A.2d at p. 645.)   The court concluded the commissioner was not eligible to be county business manager, that the attempted appointment to that office was ineffective, and the commissioner still held his original position as county commissioner.  (Id. 159 A.2d at p. 646.)

The People's reliance on these cases is misplaced.   For obvious reasons none of the cited cases refer to or construe the California constitutional provisions at issue in this case:  the relied-upon cases are out-of-state and do not involve resignation provisions similar to or even remotely like those in article 6, section 17.⁹  That section explicitly states that acceptance of a public office is deemed to be a resignation from judicial office.   There is no cause to engage in interpretation of this constitutional provision.

As the court succinctly stated in Delaney v. Superior Court (1990) 50 Cal.3d 785, at page 798, 268 Cal.Rptr. 753, 789 P.2d 934:  “We begin with the fundamental rule that our primary task is to determine the lawmakers' intent.   [Citation.]  In the case of a constitutional provision approved by the voters, their intent governs.  [Citations.]  To determine intent, ‘ “the court turns first to the words themselves for the answer.” ’  (Brown v. Kelly Broadcasting Co., supra, [1989] 48 Cal.3d 711, 714 [257 Cal.Rptr. 708, 771 P.2d 406] ), ․ ‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).’  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].)”   The language of article 6, section 17 is clear and unambiguous as to the issue tendered in this case.   It is unnecessary for our California courts to devise a method for determining which office of the two offices has been vacated when a judge accepts another public office.  “Acceptance of the public office is a resignation from the office of judge.”  (Art. 6, § 17.)   The language of the statutes and constitutions of other states' may well permit a judge to regain judicial office after accepting another office for which the judge was not eligible.   Article 6, section 17 plainly does not permit this procedure.

When Judge Young took the oath as a member of the Feather River Community College Board on November 22, 1988, he resigned his position as judge.   His later resignation from the board cannot “undo” his judicial resignation and restore him to his previous position on the Plumas County Superior Court.   Judge Young was not a judge de jure when he presided over defendant's trial in December 1988.

 However, this does not determine the basic question:  whether the conviction and sentence are void for lack of jurisdiction because a nonjudicial officer conducted the proceedings.   Although he was not a judge de jure, we conclude Judge Young was a de facto judge.

“One who claims to be a public officer while in possession of an office, ostensibly exercising its functions lawfully and with the acquiescence of the public, is a de facto officer.   His [or her] lawful acts, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he [or she] were the officer legally elected and qualified for the office and in full possession of it.  [Citation.]  The reason for the doctrine is that it is necessary to the supremacy and execution of the laws and that private challenge of the authority of officers in fact would produce inconsistency, confusion and insecurity of rights and of titles to property.  [Citation.]  In respect of judges, the de facto doctrine operates for the soundness of judgments, orders and decrees.”   (Ensher, Alexander & Barsoom, Inc. v. Ensher (1965) 238 Cal.App.2d 250, 255, 47 Cal.Rptr. 688;  see also In Re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 42, 37 Cal.Rptr. 74, 389 P.2d 538.)

“[T]he status of a de facto officer is not to be decided particularly, if at all, on the issue of good faith on [the officer's] part but rather upon the objective manifestations of office.   The doctrine of de facto officers is primarily for the protection of third persons and not of the judge.”   (Ensher, supra, 238 Cal.App.2d at p. 257, 47 Cal.Rptr. 688.)

The right of a de facto judge to hold office can be challenged only through procedures instituted for that purpose, such as quo warranto proceedings.   It cannot be attacked collaterally.  (In re Redevelopment Plan for Bunker Hill, supra, 61 Cal.2d at p. 42, 37 Cal.Rptr. 74, 389 P.2d 538;  Matter of Danford (1910) 157 Cal. 425, 431, 108 P. 322.)  “A contrary doctrine, for obvious reasons, would lead to most pernicious results.”  (People v. Sassovich (1866) 29 Cal. 480, 485.)

Judge Young sat as a superior court judge, “ostensibly exercising [the court's] functions lawfully and with the acquiescence of the public.”   (Ensher, supra, 238 Cal.App.2d at p. 255, 47 Cal.Rptr. 688.)   There is no indication that anyone challenged Judge Young's authority at anytime in November or December 1988.   The parties in this case tried the matter before Judge Young without objection.   It was only after trial that defendant raised the question of Judge Young's eligibility to preside.   Under these circumstances, Judge Young was a de facto judge and we reject defendant's claims.   Judge Young's rulings may not be collaterally attacked in an attempt to overturn defendant's conviction.

II.–VIII.**

DISPOSITION

The judgment is affirmed.

FOOTNOTES

2.   All statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote 1, ante.

4.   A recital of the facts relating to the crimes for which defendant was convicted is unnecessary to this issue and such facts are not published.

5.   The position of trustee of a community college district board is a public office within the meaning of article 6, section 17.  (56 Ops.Atty.Gen. 556, 557 (1973).)Defendant first challenged Judge Young's status as a judge in his motion for new trial.

6.   In Alex, supra, a municipal court judge in the County of Los Angeles took a leave of absence to enable him to run for Congress.   When he was not elected, he returned to his judicial duties and demanded back payment of his judicial salary.   The court upheld the constitutionality of article 6, section 17 against Judge Alex's claims of denial of equal protection, vagueness and over breadth and that it prescribed additional eligibility requirements for the constitutional office of United States Congressman.

7.   Judge Young had previously announced he would retire at the end of his judicial term, on December 31, 1988.

8.   In his argument, defendant emphasizes the need to guard against political considerations affecting judicial decisions, as discussed in Alex, supra, 35 Cal.App.3d at page 1001, 111 Cal.Rptr. 285.   Given the chronology of this case, however, these considerations are of minimal importance.   Judge Young was elected to the community college board and had resigned from that board before defendant's trial began.   Consequently, it is doubtful Judge Young would have been influenced by any political concerns.

9.   The prohibition against justices and judges holding other public offices during judicial tenure has been in effect since the 1849 Constitution, where it was originally designated as article 6, section 16.   Through various amendments and revisions it was amended to its present form by the passage of the initiative measure Proposition 94 in the 1988 election.

FOOTNOTE.   See footnote 1, ante.

CARR, Associate Justice.

PUGLIA, P.J., concurs. RAYE, J., concurs in the result.