Friday, November 18, 2016
C.A. Orders Judge to Honor Timely Peremptory Challenges
Panel Notes She’s a Repeat Offender
By a MetNews Staff Writer
The Third District Court of Appeal held yesterday that a judge erred in refusing to step aside from two criminal cases in response to a peremptory challenge, rejecting her contention that the Code of Civil Procedure §170.6 motion was untimely, and noting that this marks the second time she has recently been forced to recuse herself.
The case, in Perkins v. Superior Court, C082598, was not certified for publication. Acting Presiding Justice M. Kathleen Butz wrote the opinion.
In issue was whether Shasta Superior Court Judge Cara Beatty erred in declaring the written peremptory challenges of defendant Jesse Alton Perkins, who is charged in two criminal actions, as inffective owing to tardiness.
Preliminary hearings were set for Aug. 16 and 17; the challenges were filed July 14.
Judge Opposes Petition
In responding to the writ petition, Beatty acknowledged that there had not been an “all-purposes” assignment to her—which would have required filing the challenges “within 10 days after notice of the all purpose assignment”—but contended that the “10‑day/5‑day rule” applies.
Sec. 170.6 provides:
“If the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to, or who is scheduled to try, the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date.”
Beatty argued, in her opposition to the writ, that on March 25, Judge James Ruggiero (siting in Department 2) ordered Perkins to appear on April 7 in that department for a preliminary hearing (which was later postponed).
“[R]espondent contends the peremptory challenges were untimely under the 10‑day/5‑day rule because Judge Beatty’s regular assignment to Department 2 was at all times known by the parties, and thus when, on March 25, the case was initially set for preliminary hearing to take place in Department 2 on April 7, petitioner was obligated to file the peremptory challenge more than five days prior to April 7, or more than 5 days prior to any of the continued preliminary hearing dates. The respondent court simply ignores the long line of authority regarding the continuance or postponement of a hearing….”
Butz pointed out that courts construing the 10‑day/5‑day “conclude that if a case is assigned to a department rather than to a particular judge, the peremptory challenge is timely if made more than five days before a postponed or continued hearing date.”
The jurist went on to comment:
“We note that this is the second time this year that this court has been required to reverse an order issued by Judge Beatty, which incorrectly struck a peremptory challenge against her as untimely. We anticipate Judge Beatty in the future will ensure each litigant’s due process right to exercise a peremptory challenge. And we are troubled in this case that petitioner’s attorney was not allowed to present his argument regarding the timeliness of the peremptory challenges.”
In that earlier case, a writ petition was filed on Dec. 3, 2015, challenging Beartty’s denial of a §170.6 motion. The Third District on Jan. 8 notified Beatty:
“This court is considering issuing a peremptory writ of prohibition in the first instance, i.e., without first issuing an alternative writ….The current petition will become moot if the respondent court elects to vacate its order of November 23, 2015, and enters a new order granting petitioner’s challenge to the judge under Code of Civil Procedure section 170.6.”
Beatty acquiesced, and on Jan. 26, the writ petition was dismissed as moot.
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