Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. MCUK-CRCR-06-74005
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Following a prior appeal, we remanded this matter to the trial court, ordering that a hearing be scheduled on defendant Vincent Rosenbalm’s Marsden motion. (People v. Rosenbalm (April 3, 2008, A116597) [nonpub. opn.] (Rosenbalm).) At the time of that hearing, Rosenbalm filed a motion to disqualify the judge pursuant to Code of Civil Procedure section 170.6. The judge accepted the disqualification, but nevertheless proceeded to hear, and deny, the Marsden motion. Rosenbalm contends that the court was without jurisdiction to consider and decide his motion. We agree and reverse.
People v. Marsden (1970) 2 Cal.3d 118.
Background
In his prior appeal, Rosenbalm challenged an order committing him to a state hospital (Pen. Code, § 1370) after he was found incompetent to stand trial on a charge of making a criminal threat (Pen. Code, § 422). He contended, and the People conceded, that the court had erred in refusing to conduct a Marsden hearing despite Rosenbalm’s repeated requests for such a hearing before, during and after the competency hearing. (Rosenbalm, supra, A116597, at pp. 2-4.) We agreed that the trial court had erred and we concluded that the error was prejudicial. (Id. at p. 1.) We vacated the commitment order and remanded with the following directions: “(1) the court shall hold a hearing on appellant’s Marsden motion concerning [appointed counsel Linda] Thompson; (2) if appellant prevails on his Marsden motion, the court shall appoint new counsel to assist him for this purpose and shall entertain such applications as newly appointed counsel may make; and (3) if newly appointed counsel does not make any motions, any motions made are denied, or appellant’s Marsden motion is denied, the court shall reinstate the commitment order.” (Id. at p. 6.)
In an order entitled, “Order for Removal and Matter Set for Marsden Hearing Based on Remittitur,” dated July 17, 2008, and filed July 18, Judge Ron Brown wrote, “This matter will be heard on July 31, 2008 at 1:30 p.m., Department B for Marsden Hearing,” and ordered Rosenbalm remanded to the custody of the sheriff. (Emphasis omitted.) The order was served on the district attorney, the public defender, Napa State Hospital, and the Mendocino County Sheriff’s Office.
At the outset of the July 31, 2008 hearing, Rosenbalm told the court, “Your Honor,... I’d like to recuse you as judge under Civil Code 170.6 [sic]....” (See Code Civ. Proc., § 170.6.) After a recess, the court told Rosenbalm, “There’s a proper way to file that. We can swear you in, but you need to indicate that it’s your belief that the court currently sitting is prejudiced against your interest.” Rosenbalm then submitted a signed declaration of prejudice, which was filed. The court stated, “I am going to accept the 170.6.” The court, however, then stated its belief that it could still hear and decide the Marsden motion, citing People v. Whitfield (1986) 183 Cal.App.3d 299 (Whitfield). The court proceeded with the Marsden hearing, denied the motion, and reinstated Rosenbalm’s commitment order. Rosenbalm appeals from the July 31 orders.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
In his pro se notice of appeal, Rosenbalm identified and discussed six appellate issues. His appointed appellate counsel raised only one issue in his opening brief. We address only the issue raised by Rosenbalm’s counsel, whose representation Rosenbalm has not challenged. (See People v. Clark (1992) 3 Cal.4th 41, 173.)
Discussion
The Court Lacked Jurisdiction to Hear the Marsden Motion
Rosenbalm argues the court erred by ruling on the Marsden motion after having been disqualified under section 170.6. We agree.
Section 170.6 provides: “(1) No judge... shall... hear any matter therein that involves a contested issue of law or fact when it shall be established as hereinafter provided that the judge... is prejudiced against any party or attorney or the interest of any party or attorney appearing in the action or proceeding. [¶] (2) Any party to or any attorney appearing in any action or proceeding may establish this prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury or an oral statement under oath.... [¶] (3) If the motion is duly presented and the affidavit or declaration under penalty of perjury is duly filed or an oral statement under oath is duly made, thereupon and without any further act or proof,... the trial of the cause or the hearing of the matter shall be assigned or transferred to another judge... to try the cause or hear the matter as promptly as possible....” (§ 170.6.)
“It has been held that, in enacting Code of Civil Procedure section 170.6, the Legislature guaranteed to litigants an extraordinary right to disqualify a judge and that the right is ‘automatic’ in the sense that a good faith belief in prejudice is alone sufficient and that no showing of actual prejudice is required. [Citations.] Once such a motion is timely and properly made, the judge so challenged has no choice but to recuse himself forthwith. [Citations.] The judge immediately loses jurisdiction and all his subsequent orders and judgments are void.” (Whitfield, supra, 183 Cal.App.3d at pp. 303-304.)
Rosenbalm moved to disqualify Judge Brown pursuant to section 170.6 and submitted a signed declaration in support of the motion. Judge Brown “accepted” the motion. His statement that the Marsden motion was “something this court can hear even if this court has been disqualified” (italics added) confirms that in “accept[ing]” the motion he deemed himself disqualified. Having been disqualified, he had “no choice but to recuse himself forthwith.” (Whitfield, supra, 183 Cal.App.3d at p. 303.) He lost jurisdiction over the matter, and all of his subsequent orders, including the orders denying the Marsden motion and reinstating Rosenbalm’s commitment, must be vacated. (Whitfield, at pp. 304, 306.)
The judge indicated on the record that he believed he could hear the Marsden motion because it did not involve disputed issues of fact. Whether or not this was true, a disqualified judge cannot “hear any matter therein that involves a contested issue of law or fact” (§ 170.6, subd. (a)(1), italics added). Whitfield precludes exercise of a challenge under section 170.6 “to a judge who has already ruled upon a contested fact issue relating to the merits of the case.” (Whitfield, supra, 183 Cal.App.3d at p. 304, italics added; § 170.6, subd. (a)(2).) Here the challenged judge did not cite any prior rulings he had made relating to the merits of the case that would have rendered the disqualification motion ineffective, but instead accepted the challenge.
The Disqualification Motion Was Timely
The People do not defend the trial court’s reliance on Whitfield. Instead, they argue the judge properly ruled on the Marsden motion because Rosenbalm’s disqualification motion was untimely under section 170.6, subdivision (a)(2). They acknowledge that the judge “accepted” the disqualification motion. The implication of their argument, therefore, is that the trial court either acted outside its authority or abused its discretion in accepting a section 170.6 motion that was untimely.
We reject the People’s untimeliness argument for several reasons. First, if the People wanted to challenge the court’s grant of the section 170.6 motion, they were required to file a petition for a writ of mandate. (§ 170.3, subd. (d); In re Sheila B. (1993) 19 Cal.App.4th 187, 193-194.) A claim that a disqualification motion was erroneously granted is not cognizable on appeal. (Ibid.) Second, the People cite no authority that the time limits in section 170.6 are jurisdictional and thus that a default of the time limits cannot be excused by the trial court. (Cf. Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667 [statutory time limit for filing notice of appeal is jurisdictional and default cannot be excused by the Court of Appeal].)
The People argue that Rosenbalm’s claim is not cognizable on appeal because the exclusive means of seeking review of a ruling on a disqualification motion is by petition for writ of mandate. Rosenbalm, however, does not seek appellate review of the court’s ruling on the disqualification motion, which was accepted rather than denied. He seeks review of the court’s Marsden and recommitment orders on the ground they are void because the court lacked jurisdiction to enter them, having already accepted his disqualification motion.
In any event, the record does not establish that the motion was untimely filed. The People rely on the “all purpose assignment” rule of section 170.6, subdivision (a)(2), which provides, “If [the section 170.6 motion is] directed to the trial of a cause which has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance.” The People contend that the July 18, 2008, removal order constituted notice of an all purpose assignment: “the July 18, 2008, removal order identified Judge Brown as the judge conducting appellant’s Marsden hearing, which was the sole contested matter to be determined on remand.” However, “for a case assignment to be an all purpose assignment,... [the] judge must be expected to process the case ‘in its totality’ [citation]....” (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1180, fn. omitted.)
The July 18 order stated only that Judge Brown would hear the Marsden motion. Contrary to the People’s contention, the Marsden hearing was not the totality of the case. Had the Marsden motion been denied, the court would have had to address any motions made regarding the competency hearing and may have had to conduct a new competency hearing. Moreover, if Rosenbalm was found competent or later regained competency, the underlying criminal proceedings would resume.
Even if the assignment was for all purposes, it is not clear from the record that Rosenbalm received notice of the assignment more than 10 days before he made his section 170.6 disqualification motion on July 31, 2008. The July 18 removal order was served on defense counsel, but not on Rosenbalm, who had an independent right to file the section 170.6 motion. (§ 170.6, subd. (a)(2) [“Any party to or any attorney appearing in any action or proceeding” may bring disqualification motion], italics added.) The court itself indicated that Rosenbalm did not receive sufficient notice when it said it was accepting the motion in part “because I don’t think [Rosenbalm] fairly knew who his judge would be.”
Disposition
The July 31, 2008, orders denying Rosenbalm’s Marsden motion and reinstating his commitment are vacated. On remand, the matter shall be assigned to a different judge. The court shall then hold a hearing on Rosenbalm’s Marsden motion concerning Thompson. If Rosenbalm prevails on his Marsden motion, the court shall appoint new counsel to assist him and shall entertain such applications as newly appointed counsel may make. If newly appointed counsel does not make any motions, any motions made are denied, or the Marsden motion is denied, the court shall reinstate the commitment order.
We concur: Jones, P. J., Needham, J.