On the second day of trial, Everett filed a motion to appoint an expert to testify that his client's confession was involuntary. The trial judge ruled that
Defendant now brings a petition for writ of mandate or prohibition, challenging both the trial judge's refusal to disqualify himself and his removal of defense counsel. We shall deny the petition. Defendant withdrew his first statement of disqualification, and the trial court correctly found his second statement of disqualification was untimely. Further, a trial court has authority to remove defense counsel to ensure that adequate representation is provided, and to prevent substantial impairment of court proceedings. While such
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was arraigned in May 2016 on a complaint charging him with two counts of rape ( Pen. Code, § 261, subd. (a)(2).) In June 2016, attorney Daniel Everett substituted in as defendant's attorney of record.
The case was initially set for trial on March 27, 2017. Everett moved to continue the trial, which was then rescheduled for May 22, 2017.
Court was scheduled to begin at 8:45 a.m. on May 22. Everett did not arrive until 11:50 a.m., and then made an oral motion to continue the trial based on a need to conduct further investigation into a purported allegation of sexual assault that the victim previously made against a third party. The court granted the continuance over the prosecution's objection. Trial was re-set to July 10, 2017. On July 5, the prosecution moved to continue the trial based on witness unavailability. Defendant did not object. The court moved the trial date to November 6, 2017.
On November 6, 2017, Everett indicated he was not prepared to proceed to trial and asked for another continuance, his third such request. The prosecution objected. The court, after advising the parties that no courtrooms were available, granted the continuance and moved the trial date to February 20, 2018.
Everett appeared late for the afternoon calendar. The court first took up the defendant's motion for a further continuance of the trial. Everett admitted that the motion was "skimpy." He explained to the court that his motion was based on a conversation he had recently with a potential witness named Benito Zapata, against whom he claimed the alleged victim in the case had filed a false claim in 1999. According to Everett, Zapata would "be able to take the stand and say that she [the victim] has a reputation within the community of saying these sorts of things and making up these sorts of things that, in and of itself, the whole case could hinge upon. [¶] ... And, that alone, that is a very important aspect of this case." Everett admitted that Zapata had not been subpoenaed, but asserted that the defense had just learned of him "[w]ithin the last 72 hours." Everett sought a continuance of one week.
To support his request for a continuance, Everett forwarded an email to Judge Karesh that showed an email conversation Everett had with his defense investigator regarding Zapata. It was dated November 7, 2017, making it over three months old. In the email, the investigator explained to Everett that he and another investigator had interviewed Zapata, the victim's former work supervisor, by telephone on June 2, 2017. The investigator stated in the email that Zapata "knew nothing about [the victim] accusing anyone of sexual misconduct." The investigator continued: "Mr. Zapata also made it clear ... that he wanted 'nothing to do with' our investigation or 'going to court.' [¶] Seemed like a non-witness at the time and unless he has new information or a reason he withheld
After reviewing the email, Judge Karesh noted that it was "completely different" than what Everett had represented; the email showed that Everett had been aware of Zapata for months, and that Zapata would not provide testimony favorable to the defense. Everett responded that there were additional emails that Judge Karesh had not read. Judge Karesh asked Everett to send the emails to the court and permitted Everett to leave the courtroom to send the emails.
Everett then left the courtroom. Without warning or explanation, Everett did not return, leaving his client, the prosecutor, and the judge waiting for nearly an hour for him to return. As a result, Judge Karesh was unable to rule
The following morning, February 21, Everett did not show up to court at the start of proceedings. Judge Karesh told defendant that "we're sort of put in a difficult position. I don't know where your lawyer is." Defendant stated that Everett had called him the night before and said he would be in court. Everett eventually appeared in court later that morning. Judge Karesh asked Everett to explain his absence from the previous day. Everett said he left the courtroom the previous afternoon because he gets better reception on his cell phone from outside the courtroom, which makes it easier to send emails. Everett also told the court that his understanding was that another attorney, John Lee, had appeared for him earlier in the day, and that Lee had informed the court that Everett would need to leave early. Judge Karesh said he was not so informed. In fact, the courtroom bailiff stated that he had gone to another courtroom to talk to Lee, who told the bailiff that he would not be standing in for Everett because of the serious charges that defendant was facing. Everett did not notify the court clerk of his appointment either.
Judge Karesh then asked Everett if he had the additional emails he referenced from the previous day. Everett said he did, and, as he did the day before, asked Judge Karesh for permission to step outside of the courtroom to send them. Judge Karesh declined, saying, "Mr. Everett, you did that yesterday and disappeared without telling the Court. Why would I let you do that again?" After confirming that the prosecution was ready to proceed to trial, Judge Karesh then assigned the case for trial to Judge Steven Dylina. Everett immediately exercised a peremptory challenge ( § 170.6 ) against Judge Dylina. Judge Karesh accepted the challenge, and assigned the case for trial to a second judge, the Honorable John L. Grandsaert.
The parties appeared before Judge Grandsaert later the same morning. Everett indicated that he was not ready to proceed to trial. Everett once again sought to continue the trial and referenced the same emails he had tried to send to Judge Karesh that purportedly showed he had only recently located a witness who would testify that the victim had previously made false allegations against third parties. The prosecutor objected to the continuance request and informed Judge Grandsaert about the proceedings before Judge Karesh. Nevertheless, Judge Grandsaert said he would review the emails to determine whether there was good cause for a continuance since Judge Karesh did not appear to have issued a formal ruling on the issue. Judge Grandsaert granted Everett's request
Everett asserted that his investigator had attempted to subpoena Zapata. The court observed that nothing in the record before it addressed how long the investigator would need to subpoena him or explained why he had not been subpoenaed earlier. The court suggested that Everett have the investigator appear to explain what he had done to subpoena the witness, and observed that Everett had not indicated how much time he was requesting for a continuance.
Everett then claimed he had an additional email that contained "sensitive information" that he wanted to redact before showing to the court. The email was another one from the defense investigator, who stated that Zapata was uncooperative in being served with a subpoena or voluntarily coming to court. Everett again asserted that there had been an attempt to subpoena Zapata, but said, "We've only had five days to do so." In response to later questions from the court, however, Everett was unable to tell the court how many attempts had been made to serve Zapata and at what times of day.
Judge Grandsaert expressed the tentative view that the defense had not exercised reasonable diligence or shown good cause for a continuance. However, Judge Grandsaert said he would allow the investigator to appear in court to provide additional evidence supporting the continuance request.
Everett then moved for the appointment of an expert witness "in the area of false confessions due to language barriers." Everett explained that after speaking to the investigator, it "became quite obvious" that "false confessions" would be "a major issue in the trial" because police had elicited a
Judge Grandsaert gave Everett until 1:30 p.m. to present any additional evidence that would constitute good cause for a continuance, and encouraged him to present the investigator as a witness. Everett assured Judge Grandsaert that "absolutely no effort will be spared in obtaining
When the parties returned at 1:30, rather than present testimony or other evidence on the motion to continue, Everett immediately sought to exercise a peremptory challenge against Judge Grandsaert. Judge Grandsaert denied the request because Everett had already exercised a peremptory challenge. Everett then filed a "motion for recussal [sic ] of judge" for cause pursuant to section 170.1, asserting that Judge Grandsaert "has a bias against me" because he had declined to discuss possible settlement of the case in chambers with counsel. Everett stated in his declaration that he is a black male "with a practice dedicated to the criminal defense of predominately black and brown males," and that he found Judge Grandsaert's unwillingness to meet in chambers with counsel to discuss possible settlement "very odd, but somewhat in keeping with what I [f]eel is ostensibly disparate treatment by Judges in San Mateo County." After a brief recess, however, Everett withdrew the motion ("Your Honor, at this time, the defense will withdraw the motion"), and the trial judge conducted an in-chambers settlement conference with the parties' consent.
Following the settlement conference, which was unsuccessful, Everett again raised the continuance request. He indicated that it "would not be necessary" to produce his investigator, but provided an additional email from him that the court summarized as stating that "he has not attempted to serve Mr. Benito Zapata with a trial subpoena because ... Mr. Zapata has expressed that he would refuse to cooperate and did not wish to testify regarding any information he may have." Everett acknowledged that Zapata was not cooperative, but claimed that he had provided "substantially material information that has the potential of exonerating Mr. Magana in these proceedings." He conceded the fact that Zapata is uncooperative was "in no way, shape, or form is a good reason to not compel someone to come to court," but again asserted that the defense had had only "a very short window" within which to subpoena him. Accordingly, he requested "a very brief continuance." The court observed that although the witness had refused to be interviewed by the defense investigator, and did not "sound like a promising
Everett then returned to his request to retain an expert on false or coerced confessions. In colloquy with the court regarding the defense theory, Everett took the position that expert testimony regarding defendant's statement "would be the crux of the defense." In response to the court's question as to why he had not filed such a motion before trial commenced, given that the language issues should have been apparent to him when he undertook defendant's representation in May 2016, Everett's explanation was that he had primarily communicated with defendant in "broken Spanish" with the help of defendant's wife and, therefore, was unaware of defendant's lack of proficiency in English. Judge Grandsaert granted Everett leave to file a written motion seeking an expert. The parties were ordered to return to court the next day, February 22, at 9:00 a.m.
On February 22, Everett again appeared in court late, asserting that the delay was due to a medical issue about which he had apparently informed the judge by email. The court criticized Everett for engaging in ex parte communications with the court
After a brief recess, Judge Grandsaert decided to grant a continuance because he believed that Everett was not prepared for trial and that his representation was depriving the defendant of a fair trial. Judge Grandsaert explained:
"I do not believe that the defendant is receiving a fair trial. I do not believe that his attorney is properly prepared. I do not believe that the proper authorities are being cited to the court. I do not believe that in an issue that is important with regard to expert testimony being requested on the eve-no, on the day of trial, that that is adequate representation."
Judge Grandsaert continued the trial by more than 60 days, to April 30.
In the interim, the prosecution filed a motion requesting the trial court to remove Everett as defense counsel, which the trial court set for hearing on March 16. The prosecution argued that Everett's conduct in this case threatened the integrity of the judicial process and cast serious doubt on
Everett again arrived late for the March 16 hearing. Once he appeared, Everett again attempted to exercise a peremptory challenge against Judge Grandsaert, but conceded that he was precluded from filing a second challenge because he had already used one against a different judge. Everett then argued that although he had withdrawn his prior challenge for cause to Judge Grandsaert, the trial judge nonetheless lacked jurisdiction to conduct any further proceedings in the case. Everett then sought to file a second such challenge, asserting that he had been unfairly treated by Judge Grandsaert during the prior month's hearings. Judge Grandsaert denied the challenge as untimely.
Everett claimed that he had not read the prosecution's supplemental brief in support of the motion to remove him as counsel because it was sent to him via email without his consent-despite his own extensive use of email to attempt to file and serve pleadings. Everett defended his repeated requests for continuances, at one point claiming "you would have to be an absolute idiot if you did not want to have your cases continued" because empirical data shows that defendants fare better when cases are pending for a longer time. He again asserted that the "real crux" of the trial would turn on the expert testimony regarding defendant's ability to understand, comprehend, and reply during his interrogation by the police; "If we have the expert, we will win the case." After lengthy argument, he concluded by proclaiming: "The defense is ready. We have our expert. We have our witnesses. We have swagger as far as the eye can see. The time for motions are over. We are ready to try the case. If it be in front of your honor, you should take notes."
Judge Grandsaert granted the motion and removed Everett as counsel. We quote Judge Grandsaert's ruling in its entirety:
"It is this court's responsibility to ensure that every defendant receives a fair trial. That in turn requires that a defendant be represented by a competent attorneyacting as a diligent, conscientious advocate.
"The court must also weigh the defendant's right to retain his own counsel with the court's duties to ensure, number one, that his attorney is effectively representing him; number two, that his attorney is able to comply with the court's schedule and rules; and number three, that the public interest in the effective and efficient administration of justice is honored.
"In this case, based upon the conduct of Mr. Everett, I'm going to do something I have never done before. I am going to grant the plaintiff's motion to remove Daniel Everett from this case.
"On February 20th, [defendant's] case was set for trial. There have been four prior continuances of his case. His case had been filed two years earlier.
"Mr. Everett was in court for that fifth setting. Mr. Everett was late for every court appearance before this court, morning and afternoon, every single time. I thought that that was something that I could remedy with Mr. Everett, and I was not going to allow that to be the basis for taking any other action that would have affected [defendant's] case and Mr. Everett's representation of him.
"What I could not set aside, however, was the lack of due diligence and the lack of competence of his attorney. The most incriminating evidence against [defendant] was the testimony of the alleged victim in the case and, number two, [defendant's] confession.
"Mr. Everett and his investigator learned of a potential impeaching witness back in November of last year. That witness had provided some information that might have led a diligent attorney to follow up with his client or his own investigation to determine what that witness might be able to testify to.
"In this case, instead, what we were met with on the second day of trial was Mr. Everett advising the court that he needed a further continuance to talk to this witness because he himself, not with an investigator present, had gleaned additional impeaching information from this previously known witness, and that they had the witness's address in San Jose, and that attempts had been made to serve a subpoena on this witness without success.
"However, in his investigator's email, what was shared was that no attempt had been made to serve that witness as of 2/21, the second day of trial.
"The other most incriminating evidence is the defendant's confession. It was clear from a cursory review of that confession that the defendant's first language was Spanish and that there were language issues that could be raised surrounding the interrogation.
"Yet, despite the passage of two years, Mr. Everett on the fifth date set for trial made his first request for an expert on the issue of culture, and language, and false confessions. Mr. Everett told the court that this was, as he maintains again today, the most important issue in the case. Yet, his brief filed on the date set for trial, the fifth setting, asking for an expert was completely unbased on any kind of citations applicable to the issue of false confessions. Instead, it was based on false identification cases. It couldn't be more clear to the court as the trial judge that I could not make a ruling on this motion inlight of the fact that Mr. Everett's advocacy on this issue was completely inadequate, and incompetent, and showed no diligence whatsoever. "I was forced to continue the case once again. The alleged victim, the people, and the defendant even were denied their right to a speedy trial.
"I have no confidence that anything is going to be different. Defense counsel has told me today that it is the duty of every defense attorney to seek further continuances. He advises me that he's ready. I don't believe that that is the case. I had signed no paperwork with reference to an expert. If an expert was independently obtained, it certainly was not listed on the witness list. I have no faith that this matter will proceed to trial on a timely basis based on the activities of Mr. Everett in this case.
"Mr. Everett, you are removed from this case."
Everett, on behalf of defendant, then filed the instant writ petition. He makes two challenges. First, he claims that Judge Grandsaert should have disqualified himself after Everett filed his second challenge for cause. Second, he argues that Judge Grandsaert should not have removed him as counsel. We requested a preliminary opposition from the Attorney General. After reviewing the Attorney General's opposition, we solicited a reply from Everett. We also informed the parties that due to the unusual urgency of this matter, the court may issue a peremptory writ in the first instance, or the court may deny the petition without oral argument by a written opinion on the merits that determines a cause and constitutes law of the case. (See Frisk v. Superior Court (2011)
DISCUSSION
I. THE TRIAL COURT DID NOT ERR IN STRIKING DEFENDANT'S SECOND CHALLENGE FOR CAUSE AS UNTIMELY.
Defendant challenges the trial judge's refusal to disqualify himself after Everett presented a second statement of disqualification on March 16, 2018.
Defendant's second argument fails to address the basis for the trial court's ruling: that the challenge was untimely. Once a statement of disqualification is filed, the judge generally has three options. He or she may: (1) request any other judge agreed upon by the parties to sit and act in his place (§ 170.3, subd. (c)(2) ); (2) within 10 days of the objection, "file a consent to disqualification" (§ 170.3, subd. (c)(3) ); or (3) file "a written verified answer admitting or denying any or all of the allegations ...." (Ibid. ) Failure to take any action is deemed a consent to disqualification. (§ 170.3, subd. (c)(4).) However, there is a fourth option, the one taken by the trial judge here, which defendant ignores: "if a statement of disqualification is untimely filed or if on
Section 170.3 provides that a written verified statement of disqualification shall set forth the facts constituting the grounds for disqualification of the judge, and "shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." (§ 170.3, subd. (c)(1), italics added.) "This strict promptness requirement is not to be taken lightly, as a failure to comply constitutes forfeiture or an implied waiver of the disqualification. [Citation.] Thus, when a statement of objection is untimely filed, it is appropriate for the trial court to order it stricken. [Citations.]." ( Tri Counties Bank v. Superior Court , supra ,
Before presenting the second statement on March 16, Everett represented that it "gives some additional facts after Your Honor had ruled" and "deals with proceedings after [the prior hearings]." It did not. Even a cursory reading of the second statement reveals that all of the purported facts it recites as a basis for recusing the trial judge related to events that had occurred nearly one month earlier, on February 21 and February 22, when the case was first assigned to Judge Grandsaert for trial. Indeed, the second
Even if Everett's second challenge had not been untimely, it is doubtful whether it was legally sufficient on its face. Everett repeated his complaint from the first challenge that Judge Grandsaert had declined to meet with counsel in chambers to discuss settlement-a complaint that, since it applied equally to the prosecutor, was hardly a basis for concluding that the judge harbored bias or prejudice toward him or his client. In the second statement, Everett added that the trial judge required Everett but not opposing counsel to stand while addressing the court (a contention disproven by the record),
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REMOVING DEFENSE COUNSEL.
In a single paragraph of his petition devoid of any citation to authority, defendant argued, "Case law is clear that a Judge does not have the ability to remove a retained criminal defense attorney." Defendant asserted "there is no precedent that would allow a court to deny a criminal defendant the counsel of their choosing, especially not under the circumstances here." In his reply brief, defendant for the first time makes three additional, inconsistent arguments. First, he concedes that there is authority providing that a court may relieve retained counsel, but contends it applies only if there is an established conflict of interest or if it is shown that the attorney is not physically able to represent a defendant. Second, he insists that the superior
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall ... have the [a]ssistance of [c]ounsel." "[A]n element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him." ( United States v. Gonzalez-Lopez (2006)
"A trial court may remove defense counsel, even over defendant's objections, 'in order to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings ....' [Citation.]." ( People v. Richardson (2008)
"On appeal, the trial court's removal of counsel is reviewed for abuse of discretion. ' "A court abuses its discretion when it acts unreasonably under
To be sure, we acknowledge that, as our high court has cautioned, " '[t]he involuntary removal of any attorney is a severe limitation on a defendant's right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed.' [Citations.]" ( People v. Daniels (1991)
At the threshold, we pause to identify the key constitutional and statutory provisions implicated by the trial court's ruling. (See People v. Cole , supra ,
Applying these principles, courts have upheld orders removing defense counsel, both retained and appointed, where counsel was unprepared on the assigned trial date or was providing inadequate representation. For example, in People v. Strozier, supra , defendant's trial for attempted murder was twice continued at his request. (
The Court of Appeal rejected defendant's argument that his due process rights were violated by the trial court's order relieving his retained counsel. ( People v. Strozier , supra ,
"At the hearing, [defendant's] counsel represented that hewould be 'incompetent' to proceed to trial even if the case were trailed four more days, and he could not give the trial court any assurances that he would be ready to proceed to trial at that time. Since [defendant's] counsel, by his own admission, was incompetent to try the case within the set trial date or dates, the trial court had little other alternative except to relieve him."
( Ibid . ; see also, e.g, People v. Avila (2009)
Defendant relies heavily on Smith v. Superior Court (1968)
Here, we conclude that the trial court did not abuse its discretion in removing Everett as counsel for two reasons, either of which independently justified its action. First , the trial court found that Everett was not prepared for trial and was not providing adequate representation to defendant. There is ample evidence in the record before us to support that finding. On the first day set for trial, Everett had not yet retained an expert witness whose testimony, he asserted, would be critical-indeed central-to his client's defense. Indeed, he asserted, such testimony "would be the crux of the defense."
Defendant asserts that unlike Strozier , where counsel admitted his own incompetence to represent the defendant unless a continuance was granted, here Everett "had explicitly stated that he was ready for trial and intended to win said trial." Nowhere, however, does defendant address Everett's assertions to the trial court that Zapata's testimony would be "the time bomb that us on the defense have been waiting for" and that "in my view, as Mr. Magana's defense counsel, it is absolutely 110 percent necessary that we get this individual into court." Nor does he explain how it was that Everett could have been "ready for trial" when he had just told the trial judge, almost in the same breath, that expert testimony from an expert whom he had not yet retained "would be the crux of the defense" and that "[t]he whole trial is probably going to depend on it. It will undoubtedly depend on this whole issue." If those representations were true, Everett, by his own admission , was not prepared on the day set for trial to competently represent defendant. As a result, "the trial court had little other alternative except to relieve him." ( People v. Strozier, supra,
Second, the trial court also was justified in removing Everett to prevent substantial impairment of the court proceedings. Although the trial of the case had been continued four previous times, the trial court understandably had no confidence that Everett ever would be ready to proceed with trial in a timely fashion. The record makes clear that the trial judge was entirely justified in reaching that conclusion. Among other things:
• Everett had learned months earlier of a key impeaching witness, but as of the first day of trial, still had not served that witness with a subpoena to testify or, apparently, made any effort to do so;
• Everett claimed that expert testimony regarding language and false confessions would be critical to challenging his client's confession, yet as of the first day of trial he still had not retained an expert witness or taken the necessary steps to have one appointed;
• The brief Everett belatedly filed regarding the admissibility of such expert testimony addressed an entirely different (and irrelevant) issue, that of eyewitness identification;
• Everett appeared on the first day of trial unprepared to file a key motion to suppress his client's confession, written in limine motions, a witness list, or proposed jury instructions;
• Everett engaged in improper ex parte communications with the court; and
• Everett consistently appeared late for court appearances.
We could go on, but the point is made: there was ample reason for the trial court to conclude both that Everett was not providing Magana with effective representation, and that it was doubtful that he would be prepared by the time of the next trial date to competently try the case. Under the circumstances, it did not abuse its discretion in removing him as counsel.
A trial judge faced with a situation like this one "is placed in a difficult dilemma: 'If a ... court agrees to the ... representation, and the advocacy of counsel is thereafter impaired as a result, the defendant may well claim that he did not receive effective assistance. [Citation.] On the other hand, a ... court's refusal to accede to the ... representation may result in a
III. DEFENSE COUNSEL'S MISCONDUCT WARRANTS REFERRAL TO THE STATE BAR.
We address one final topic: whether Everett's conduct warrants referral to the State Bar for investigation and possible disciplinary action. We are compelled to conclude that it does.
A court "shall notify the State Bar" whenever, inter alia , "a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney." ( Bus. & Prof. Code, § 6086.7, subd. (a)(2).) We believe that the misconduct at issue here is sufficiently serious that the State Bar should be made aware of it. (See In re Aguilar (2004)
Judge Grandsaert's findings here, which we affirm, establish a clear violation of Rule 3-110 of the Rules of Professional Conduct [failing to act competently], and at least a prima facie violation of Rule 5-200(B) and Business & Professions Code section 6068, subdivision (d) [misrepresentation to a judge of fact or law by artifice or false statement]. What we see on this record may even have provided the basis for a contempt citation had Judge Grandsaert chosen to proceed in that fashion. (See Chula v Superior Court (1962)
This is particularly troubling because "a motion to recuse a judge is not just another procedural or evidentiary motion. It is a direct attack on one of the basic principles of our judicial system, the impartiality of trial courts. If such a motion is made when a case is close to trial, it necessarily calls into question the administration of justice. And the making of such a motion impacts unfavorably upon the public's perception of the administration of justice." ( In re Order To Show Cause (N.D. Cal. 1990)
Thus, an attorney who believes that a judge is biased or prejudiced against him or his client unquestionably is entitled to seek that judge's recusal by filing a statement of disqualification-"so long as his affidavit in support of the motion to recuse
DISPOSITION
We deny the petition for writ of mandate and/or prohibition and the supplemental petition. This denial becomes final as to this court 30 days after filing. Further, pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), the clerk of this court is directed to forward to the State Bar a copy of this opinion.
We concur:
Streeter, Acting P.J.
Reardon, J.
Notes
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Defendant contended below that the trial court lacked jurisdiction by virtue of Everett having filed the first statement of disqualification on February 21, 2018, even though Everett withdrew that challenge before the trial judge could address it. He did not repeat that argument before this court in his petition, and has therefore forfeited it, despite his belated attempt to resurrect it in his reply brief. "We will not ordinarily consider issues raised for the first time in a reply brief." (American Indian Model Schools v. Oakland Unified School Dist. (2014)
After filing the writ petition, defendant filed a "supplement" to the petition. It seeks judicial notice that on October 18, 2016, Everett had filed a statement of disqualification against a third judge, the Honorable Stephanie Garratt, who had issued a bench warrant against defendant and an OSC re contempt against Everett for failing to appear at an earlier scheduled court appearance. The supplement alleges that Judge Garratt did not respond to the statement. It further contends that on February 20, 2018, Judge Garratt "ruled that the case was confirmed for trial," and that all subsequent orders made by any judge in the case were void. Defendant made no such contention below, and has therefore forfeited it here. In any event, it lacks merit, and is unsupported by the single case he cites. The incomplete court minutes attached to the supplement reflect that the case was originally assigned to Judge Garratt for trial and then reassigned to Judge Karesh. Judge Garratt did not hear or rule on defendant's motion to continue or decide any other matter in connection with the case.
It is of no significance that the trial judge "denied" the challenge rather than "striking" it. Just as Everett did in titling his statement of disqualification, courts sometimes describe a party's filing under section 170.3, subdivision (c), as a "motion" to disqualify. (Tri Counties Bank v. Superior Court (2008)
Defendant cites only one case on the subject, but that case does not support his position. (Hayward v. Superior Court (2016)
The trial judge explained that he had required Everett to stand to address the court because Everett had repeatedly interrupted counsel when seated, and that he had required both counsel, not just Everett, to stand. The record supports both assertions.
Penal Code section 987.05 was enacted by initiative in 1990 (see Raven v. Deukmejian (1990)
In this regard, a challenge for cause is very different from a peremptory challenge under section 170.6. Section 170.6"allows for the disqualification of judges based upon the mere ' "belief of a litigant" that he cannot have a fair trial before the assigned judge.' [Citations.]" (People v. Superior Court (Tejeda) (2016)