Marquez v. Sup. Ct.
Filed 8/9/06 Marquez v. Sup. Ct. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| ANDREW MARQUEZ, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. | G037380 (Super. Ct. No. 06HF0286) O P I N I O N |
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Kelly MacEachern, Judge. Petition granted.
Deborah A. Kwast, Public Defender, Thomas Havlena, Chief Deputy Public Defender, and Kevin Phillips, Assistant Public Defender.
No appearance for Respondent.
Tony Rackauckas, District Attorney and William Fallon, Deputy District Attorney, for Real Party in Interest.
THE COURT:
Petitioner, Andrew Marquez, contends the court erroneously refused to file his peremptory challenge pursuant to section 170.6 of the Code of Civil Procedure[1] to disqualify the trial judge. We agree and the petition is granted.
FACTS
In 2006, Andrew Marquez, pleaded guilty to possession of a controlled substance and driving without a driver's license before Judge Robison. In addition to a $50 fine for the Vehicle Code infraction, Judge Robison ordered Marquez to participate in the deferred entry of judgment program pursuant to Penal Code section 1000. In April, Marquez filed proof of enrollment in the program and Judge Robison continued the matter to October for proof of completion.
In July, Marquez was terminated from the program based on the diluted result of a drug test. When Marquez returned to court on July 21, 2006, Judge MacEachern had Judge Robison's calendar. According to Marquez, when counsel and the People advised the court of the reason for his appearance and explained that he was eligible to be sentenced pursuant to Proposition 36, Judge MacEachern stated it was her intention to give Marquez 30 days in jail first, and then sentence him pursuant to Proposition 36. Counsel consulted his office regarding the court's authority to sentence Marquez to jail, and when he returned to court, he filed a peremptory challenge to disqualify the court pursuant to section 170.6.
When the court returned from its noon recess, it called Marquez's case and stated â€
