Filed 8/15/17 Guiney v. Superior Court CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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PAUL THOMAS GUINEY, Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
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C083958
(Super. Ct. No. LODCRMI20160009985)
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By way of a petition for writ of mandate or prohibition, petitioner Paul Thomas Guiney challenges an order of respondent Superior Court of San Joaquin County denying his Code of Civil Procedure section 170.6 peremptory challenge to Judge Philip Urie.
Petitioner is presently charged with one misdemeanor count of public intoxication. (Pen. Code, § 647, subd. (f).) He was arraigned on the complaint in July 2016, and over the ensuing five months made numerous appearances before Judge Urie as the pretrial proceedings progressed.
In December 2016 petitioner asserted a peremptory challenge to Judge Urie. Judge Urie denied the motion as untimely, deeming it a belated challenge to his all purpose assignment. Successive writs to the appellate division of respondent court and to this court proved unsuccessful. Petitioner then sought relief in the Supreme Court, which granted the petition and transferred the matter to this court with directions that we vacate our order denying the petition and issue an order directing respondent court to show cause why the relief sought in the petition should not be granted.
Having complied with the Supreme Court’s directive, we received a return from the People wherein they provide additional exhibits, set forth a detailed discussion about how “[c]ourts preside over misdemeanor cases in the Lodi Branch of the San Joaquin County Superior Court,” and concede that no all purpose assignment had been made as of the time defendant asserted his peremptory challenge. In sum, the People admit the peremptory challenge was both timely and meritorious. Given the record and the People’s concession, further discussion is unnecessary.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its December 13, 2016 order denying petitioner’s peremptory challenge and to enter a new order granting the challenge. This decision is final forthwith as to this court. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The stay which was issued by the Supreme Court pending a decision of this court is by virtue of or our decision functus officio and is dissolved by operation of law.
RAYE , P. J.
We concur:
BLEASE , J.
MURRAY , J.
