196 Cal. App. 4th 879
Cal. Ct. App.2011Background
- D.M. is a ward Petitioner under Welfare and Institutions Code § 602 facing charges for assault on a school employee and resisting a peace officer.
- On December 9, 2009, D.M. was arraigned before a juvenile court Referee.
- At a April 19, 2010 pretrial conference, the Referee granted D.M.’s Pitchess motion.
- On July 26, 2010, the Referee declared a doubt regarding D.M.’s mental competence and scheduled a competency hearing for October 14, 2010.
- On October 5, 2010, D.M. filed an affidavit of prejudice (procedural 170.6(a)(2)) seeking to disqualify the Referee.
- The Referee denied the challenge on October 14, 2010 as untimely, citing a supposed all-purpose assignment; D.M. sought writ relief, with further proceedings culminating in a Supreme Court transfer for disposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Referee’s assignment was all-purpose under §170.6(a)(2). | D.M. argues no valid all-purpose assignment existed. | People contend assignment was all-purpose, making the challenge untimely. | No valid all-purpose assignment; challenge timely under other rules. |
| Whether the 170.6 challenge was timely under the 10-day/5-day rule. | D.M. filed within 10 days after notice of assignment. | People argue untimely due to assignment label and notice issues. | Timely under the 10-day/5-day rule; timing satisfied. |
| Whether written notice of entry was necessary to trigger §170.3( d) timing. | filing within 10 days should count regardless of service box. | Without proof of notice, petition should be untimely. | Petition timely due to lack of evidence of notice of entry. |
| Whether prior appearances before the Referee precluded later 170.6 challenge. | Prior appearances do not bar later challenge under §170.6(a)(2). | Earlier proceedings could preclude new challenges. | Prior appearances do not bar timely challenge. |
Key Cases Cited
- Lavi v. Superior Court, 4 Cal.4th 1164 (Cal. 1993) (defines all-purpose assignment and timing framework)
- Daniel V. v. Superior Court, 139 Cal.App.4th 28 (Cal. App. 2006) (reaffirms 170.6 timing and all-purpose rules)
- Motion Picture & Television Fund Hosp. v. Superior Court, 88 Cal.App.4th 488 (Cal. App. 2001) (voids policies conflicting with statutory time provisions)
- Jonathon M. v. Superior Court, 141 Cal.App.4th 1093 (Cal. App. 2006) (nonconclusive labeling of all-purpose assignments; notice issues)
- Welfare & Institutions Code v. Lavi, 4 Cal.4th 1164 (Cal. 1993) ((cited within Lavi))