Reynolds v. Superior Court

Filed 7/3/07 Reynolds v. Superior Court CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

ORIGINAL PROCEEDINGS in mandate. Jesse I. Rodriguez, Judge

Petition granted.

Michael P. Judge, Public Defender, Natasha E. Khamashta and John Hamilton

Scott, Deputy Public Defenders.

No appearance for Respondent.

No appearance for Real Party in Interest.

___________________________

Scott Gordon Reynolds, defendant in a criminal action, seeks a writ of mandate directing the court to invalidate the determination by Judge Jessie I. Rodriguez that a peremptory challenge (Code Civ. Proc., 170.6) to Judge Charles D. Sheldon was untimely after Judge Sheldon had determined the challenge was timely and transferred the matter for assignment to a different judge.

We conclude the petition is meritorious. It is therefore granted.

DISCUSSION

1. One superior court judicial officer cannot change the ruling made by a different judicial officer of the same court.

Whether the peremptory challenge was timely filed or not is irrelevant under the circumstances here. Judge Sheldon accepted the challenge. A different superior court judge cannot overrule Judge Sheldons ruling.

A superior court is but one tribunal, even if it be composed of many departments . . . . An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department. . . . [Citations.] (Ford v. Superior Court (1986) 188 Cal.App.3d 737, 741.) For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court. (In re Alberto (2002) 102 Cal.App.4th 421, 427.)

2. A peremptory writ of mandate must be issued in the first instance.

Section 1008 of the Code of Civil Procedure provides authority to issue a peremptory writ in the first instance. (Palmav. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

The Supreme Court discussed the issuance of a writ in the first instance in several subsequent cases. (Kowis v. Howard (1992) 3 Cal.4th 888; Ngv. Superior Court (1992)

4 Cal.4th 29; Alexanderv. Superior Court (1993) 5 Cal.4th 1218; Lewisv. Superior Court (1999) 19 Cal.4th 1232.) These cases established use of the Palma procedure is available where (1) there is a need for an accelerated procedure, and (2) the entitlement to relief is obvious.

The circumstances here satisfy those requirements. This is a pending criminal case with hearings scheduled from day-to-day, and there can be no dispute that one superior court judge cannot change the ruling of a different superior court judge.

CONCLUSION

Petitioners   entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . . [Citation.]
(Lewis v. Superior Court, supra, 19 Cal.4th at p. 1241.)

DISPOSITION

The petition for writ of mandate is granted.

Let a peremptory writ of mandate issue in the first instance directing Judge Jessie I.. Rodriguez to (1) vacate the order entered on June 19, 2006, changing the decision made by Charles D. Sheldon, a different judicial officer of the same court; (2) accept the peremptory challenge as timely filed as previously determined by Judge Sheldon; and
(3) ensure that the case is heard by a judicial officer who has not been disqualified.

No costs are awarded in this proceeding.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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