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Court of Appeal, Second District, Division 2, California.

Anthony Leroy FRAIJO, Petitioner, v. SUPERIOR COURT of the State of California for the COUNTY OF LOS ANGELES, Respondent, PEOPLE of the State of California, Real Party in Interest.

Div. 42124.

Decided: June 19, 1973

Raymond C. Youngquist, Andrews, Youngquist, McDaniel & Plotkin, Azusa, for petitioner. John H. Larson, Acting County Counsel, Jeffrey H. Nelson, Deputy County Counsel, Los Angeles, for respondent.

For Opinion on Rehearing, see 109 Cal.Rptr. 909.

Petitioner is charged in two separate informations filed in the Superior Court of Los Angeles County with two counts of burglary (case #A514954), two counts of violation of section 11501 of the Health and Safety Code, and two counts of violation of Health and Safety Code section 11503 (case #A513381).   In this proceeding he seeks a writ of prohibition to prevent the Honorable August J. Goebel, judge of the superior court, from presiding at his trial on the grounds that he has filed a timely motion to disqualify Judge Goebel pursuant to Code of Civil Procedure section 170.6.

We have concluded that the appropriate remedy is a peremptory writ of mandate directing the trial court to grant petitioner's motion and we order that the writ be issued.

The question presented by this petition is what provisions of Code of Civil Procedure section 170.6 control when, pursuant to Penal Code section 1192.5, the trial judge withdraws from a tentatively approved plea bargain and the case is then reset for trial.

In the instant proceeding petitioner was arraigned in Case No. A514954 on October 17, 1972 and entered a plea of not guilty.   This proceeding was before Judge Goebel pursuant to case assignment procedures that were in force in the East Branch of the Los Angeles County Superior Court, which procedures do not appear to involve a so-called “Master Calendar Court.”  (See Sambrano v. Superior Court, 31 Cal.App.3d 416, 107 Cal.Rptr. 274 (2nd Civil No. 41602;  filed March 30, 1973).)

On October 17, 1972, in a pre-trial conference, a plea bargain was negotiated between defendant and the prosecuting attorney with tentative approval of the court.   The matter was then set on Judge Goebel's calendar for plea and disposition on January 8, 1973.

On November 30, 1972, defendant was arraigned before Judge Goebel in case No. A513381.   He pleaded not guilty and the matter was continued to December 13, 1972 for a pre-trial hearing and trial setting.   On that latter date the case was set for trial on January 19, 1973 and a pre-trial hearing was set for January 3, 1973.

On December 29, 1972, defendant moved to advance both cases to that date whereupon another plea bargain was negotiated and defendant pleaded guilty to one count of each information.   A probation and sentence hearing was set for January 23, 1973 which hearing was later continued to January 27, 1973.

On January 26, 1973, Judge Goebel, by written order, withdrew from the plea bargain, set aside defendant's pleas of guilty, entered not guilty pleas and set the matter for trial before him on January 30, 1973.   Defendant on January 30, 1973, for the first time filed a declaration of prejudice pursuant to Code of Civil Procedure section 170.6.

The trial was then trailed to January 31, 1973, and then continued to March 7, 1973.   Defendant filed a second declaration under Code of Civil Procedure section 170.6 on February 7, 1973.

As to each of defendant's motions to disqualify him, the judge ruled that they were not timely for the reason that “The Court had previously made a determination factual issue.”

Code of Civil Procedure section 170.6 provides in relevant part:  “Where the judge ․ assigned to or who is scheduled to try the cause or hearing 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․  In no event shall any judge ․ entertain such motion if it be made ․ after trial of the cause has ․ commenced ․  The fact that a judge ․ has presided at or aided 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.”

At the outset it is clear that on December 29, 1972 when petitioner entered his pleas of guilty, the five day limitation had not yet come into play.   Case No. A5115954 had not yet been set for trial and case No. A513381 was set for trial January 19, 1973, considerably more than five days off.   The entry of the guilty pleas had the effect of vacating the trial setting in case No. A513381, and obviating any trial setting in case No. A514954.

 When the court on January 26, 1973 withdrew from the plea bargain, reinstated the not guilty pleas and set the trial some four days hence, the petitioner insofar as the time limitations of Code of Civil Procedure section 170.6 are concerned, was then obliged to file his motion prior to commencement of the trial.   This he did.

Had the trial at that time been set before any one other than Judge Goebel, there can be no question but what the petitioner's action would have been timely.

Thus we turn to the question of whether Judge Goebel's tentative acceptance and later rejection of the plea bargain constituted a “determination of contested fact issues relating to the merits” of the case.

In Kohn v. Superior Court, 239 Cal.App.2d 428, 48 Cal.Rptr. 832, it was held that a judge in ruling on a motion under section 995 of the Penal Code was not making a determination of a factual issue relating to the merits of the case.   The rationale there set out at pages 430 and 431, 48 Cal.Rptr. at page 834 was that in such a ruling “․ the court merely reviews the evidence.   It does not substitute its judgment as to the weight thereof ․ nor does it resolve conflicting factual contentions․  The function ․ involves the 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.”

A plea bargain is concerned only with the sentence to be imposed in exchange for defendant's plea of guilty which plea admits all of the facts necessary to establish guilt.   The matter of sentencing is addressed to the discretion of the trial judge and involves his evaluation of the established circumstances surrounding defendant's commission of the offense.   Such an evaluation does not partake of the nature of a factual determination as to the merits of the case as envisioned by the language of Code of Civil Procedure section 170.6.

 In the latter regard then a judge's exercise of his discretion, based on his evaluation of admitted facts, in refusing to accept a proposed bargain which has the effect of limiting his discretion is a legal matter and does not involve a fact finding function.

We wish to make it clear that our ruling is based on the express provisions of Code of Civil Procedure section 170.6 and cases interpreting those provisions.   We express no opinion on whether the rejection of a proposed plea bargain would provide a defendant with grounds to disqualify the judge under Code of Civil Procedure section 170, subdivision (5).   That, of course, would permit a defendant to “shop” from judge to judge until he found one who would accept his offer.   It is not our intent to encourage or countenance the practice of “judge shopping.”   Of course, defendant is entitled to move only once under Code of Civil Procedure section 170.6 and this limitation should serve to prevent such practice.

Let a peremptory writ of mandate issue directing the respondent court to honor petitioner's motion to disqualify Judge Goebel from presiding at the trial of the case.

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Docket No: Div. 42124.

Decided: June 19, 1973

Court: Court of Appeal, Second District, Division 2, California.

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