Botfield v. Sup. Ct.

Filed 10/19/06 Botfield v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of mandate.James W. Webster, for Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and David A. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.

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RELEVANT PROCEDURAL AND FACTUAL HISTORY

In a complaint filed on February 23, 2006, in Tuolumne County Superior Court (limited jurisdiction), petitioner was charged with misdemeanor violation of Vehicle Code^[1] section 23152, subdivision (a) (count 1), and violation of section 23152, subdivision (c) (count 2). Two prior convictions were alleged pursuant to sections 23540 and 23542 and/or sections 23546 and 23548: violation of section 23152, subdivision (a) on October 15, 1996; violation of section 23152, subdivisions (a) and (b) on August 11, 1999.

On March 15, 2006, petitioner was arraigned before Presiding Judge Boyack and entered pleas of not guilty. On April 27, 2006, the trial readiness conference and jury trial dates were continued to May 18 and May 22, 2006. On May 18, 2006, at the trial readiness conference, petitioner’s motion to strike one of the prior convictions was continued to May 19, 2006, and later continued to June 2, 2006.

On June 2, 2006, the hearing on the motion to strike the prior began before Judge Boyack, who subsequently disqualified himself during the hearing and transferred the motion to Department 4. The motion was then heard by Judge Provost, who denied the motion and set the case for trial readiness conference on June 27, 2006, and jury trial on July 5, 2006.

On June 5, 2006, petitioner filed an affidavit pursuant to Code of Civil Procedure section 170.6 disqualifying Judge Provost. On the same day, Judge Provost denied the motion as untimely.

On June 13, 2006, petitioner filed a petition for writ of mandate in the appellate division of the superior court challenging Judge Provost’s ruling.

On June 26, 2006, Judge Boscoe denied the petition for writ of mandate. Only his name appears on the denial order, which states, pertinent part:

“In denying the Motion to Strike Prior Conviction, Judge Eleanor Provost made a determination of contested fact issues relating to the merits of the case. After such a determination has been made, the filing of a disqualification pursuant to CCP § 170.6 is untimely.”

On June 26, 2006, petitioner appeared before Judge Provost, with trial pending on July 5, 2006. According to petitioner, the court indicated no continuances of the trial for purposes of appellate proceedings on either the Code of Civil Procedure section 170.6 issue or constitutionality of the prior conviction issue would be granted. Petitioner entered a plea of guilty on count 2, and admitted the existence of the prior, but still contested its constitutionality. The purpose of the plea was to allow appellate review. Sentencing was set for August 8, 2006.

The present petition was filed on July 26, 2006. On August 4, 2006, this court issued the following order:

“Sentencing in Tuolumne County Superior Court action No. CRM20426, presently set for August 8, 2006, is stayed pending determination of the petition for writ of mandate in the above entitled action, or until further order of this court.

“On or before 15 days from the date of this order, petitioner is directed to cause the record to be augmented with the following materials, and copies be provided to the parties:

“1. Any written motion to strike the prior, opposition to that motion, and reply to the opposition;

“2. A copy of the taped proceeding on the motion to strike the prior held before Judge Provost;

“3. A transcript of the above mentioned tape recording.

“On or before 15 days from the date of the above mentioned materials are received by the Attorney General, the Attorney General is directed to file a response to the “Petition For Writ Of Mandate,” filed on July 26, 2006.

“The Clerk/Administrator of this court is directed to provide the Attorney General with a copy of said petition with this order.”

The record was filed on August 23, 2006, and a response was filed on September 8, 2006.

DISCUSSION

Petitioner claims Judge Provost erred in denying the Code of Civil Procedure section section 170.6 motion as untimely, and Judge Boscoe erred by denying the petition for writ of mandate because the disqualification motion was timely, and because he acted as an individual judge of the superior court, rather than as a member of a panel of judges of the appellate division.

The motion to disqualify was timely, insofar as it complied with the five-day rule because it was filed three days after the motion to strike was denied. It was not until the hearing on the motion was transferred that petitioner learned Judge Provost would be involved in the case. In this same regard, the petition for writ of mandate was also timely filed in the appellate division because it was filed eight days after the section 170.6 motion was denied. (Code Civ. Proc., § 170.3, subd. (d).) Consequently, the only timeliness issue presented is whether a pretrial ruling on a motion to strike a prior on constitutional grounds is a motion “involving a determination of contested fact issues relating to the merits . . . .” (Code Civ. Proc., § 170.6, subd. (a)(2).) Because we will grant the petition on other grounds, we leave resolution of this issue first to the appellate division, as we do the waiver issue raised by the Attorney General.

Petitioner argues Judge Boscoe erred in denying the petition for writ of mandate filed with the appellate division of the superior court because he ruled in his capacity as a single superior court judge, rather than as a member of an appellate division panel. We agree.

In terms of general appellate division jurisdiction, California Constitution Article 6, section 11 provides, in pertinent part:

“(a) The Supreme Court has appellate jurisdiction when judgment of death has been pronounced. With that exception courts of appeal have appellate jurisdiction when superior courts have original jurisdiction in causes of a type within the appellate jurisdiction of the courts of appeal on June 30, 1995, and in other causes prescribed by statute. When appellate jurisdiction in civil causes is determined by the amount in controversy, the Legislature may change the appellate jurisdiction of the courts of appeal by changing the jurisdictional amount in controversy.

“(b) Except as provided in subdivision (a), the appellate division of the superior court has appellate jurisdiction in causes prescribed by statute.

California Constitution Article 4, section 4:

“In each superior court there is an appellate division. The Chief Justice shall assign judges to the appellate division for specified terms pursuant to rules, not inconsistent with statute, adopted by the Judicial Council to promote the independence of the appellate division.”

Code of Civil Procedure section 77, subdivisions (a) and (d) provide:

“(a) In every county and city and county, there is an appellate division of the superior court consisting of three judges or, when the Chief Justice finds it necessary, four judges. . . .

“(d) The concurrence of two judges of the appellate division of the superior court shall be necessary to render the decision in every case in, and to transact any other business except business that may be done at chambers by the presiding judge of, the division. The presiding judge shall convene the appellate division when necessary. The presiding judge shall also supervise its business and transact any business that may be done at chambers.” (Emphasis added.)

Proposition 220, approved June 2, 1998, and effective June 3, 1998, amended the first paragraph of Article 6, section 10 of the California Constitution which now reads:

“The Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings. Those courts also have original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition. The appellate division of the superior court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition directed to the superior court in causes subject to its appellate jurisdiction.” (Emphasis added.)

The appellate division now has original jurisdiction in proceedings for extraordinary relief by way of petition for writ of mandate. (Kernes v. Superior Court (2000) 1977 Cal.App.4th 525, 528-529.) The appellate division therefore had jurisdiction to entertain the petition filed by petitioner.

The denial order does not indicate the petition was reviewed by a panel of the appellate division. It is unclear, therefore, whether Judge Boscoe was acting as a member of a panel of the appellate division of the superior court, or as a single judge hearing a petition for writ of mandate under the original jurisdiction of the superior court conducting writ review by the general power of the court and its judges. (See Rosenberg v. Superior Court (1998) 67 Cal.App.4th 860, 870 [where the underlying proceedings preceded the effective date of the 1998 amendment of Article 6, section 10 of the Constitution]; Thomasian v. Superior Court (1953) 122 Cal.App.2d 322, 329; Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1019, fn. 2.) The 1998 amendment specifically gave the appellate division “original jurisdiction in proceedings for extraordinary relief in the nature of mandamus . . .,” and a decision of the appellate division requires “the concurrence of two judges. . . .” (Code Civ. Proc., § 77, subd. (d).)

DISPOSITION

Petitioner is entitled to appropriate relief. (Code Civ. Proc., § 1085; see People v. Municipal Court (Bonner) (1980) 104 Cal.App.3d 685.) A peremptory writ of mandate is proper and should issue. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180-181.)

Let a peremptory writ of mandate issue directing the Tuolumne County Superior Court to vacate its order filed on June 26, 2006, in Tuolumne County Superior Court action No. CRW21321 and reconsider, in accordance with the opinion expressed herein, the “Petition for Alternative Writ of Mandate,” filed June 13, 2006. This court’s order of August 4, 2006, staying sentencing in Tuolumne County Superior Court action No. CRW20426 shall remain in effect until the Appellate Division of the Tuolumne County Superior Court decides the above mentioned petition for writ of mandate, at which time that portion of this court’s order staying sentencing shall be vacated and the stay lifted.

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^* Before Ardaiz, P.J., Gomes, J., and Kane, J.

^[1] All further statutory references are to the Vehicle Code, unless otherwise indicated.