Metropolitan News-Enterprise


Monday, May 20, 2019


Page 1


Court of Appeal:

10-Day Rule for Dumping Judge Inapplicable to Resentencing Bid

Orange Superior Court Ordered to Grant Disqualification Motion by Petitioner, Convicted of 1981 Murder;

Targeted Judge Ruled in Unrelated Case That New Law Authorizing Such Petitions Is Invalid


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal has ordered that the Orange Superior Court honor the peremptory challenge to a judge by a man seeking resentencing in connection with a 1981 torture-death, holding that under the circumstances, Code of Civil Procedure §170.6 prescribes no set number of days within which to file a disqualification motion following notification of an all-purpose assignment.

Seeking to preclude Judge Gregg L. Prickett from acting on his petition for resentencing is Guy Michael Scott, convicted on Feb. 2, 1984, of first degree murder. Prickett ruled earlier this year in an unrelated case that the statute under which Scott is proceeding is invalid.

Scott filed his petition last Jan. 7; a minute order of Feb. 13 sets forth that the case is assigned to Prickett “for purposes of the petition”; with no hearing pending, Scott filed a peremptory challenge on April 2; on April 9, the challenge was bounced “because of a lack of timeliness.” A writ petition was filed in the Court of Appeal on April 19 and the Superior Court on May 1 clarified, in its docket, that “the assignment to Judge Gregg Prickett, was made for all-purposes.”

In a “By the Court” opinion filed Thursday and not certified for publication, Div. Three granted a peremptory writ in the first instance.

Sec. 170.6(a)(2) Cited

“Subdivision (a)(2) of section 170.6 pinpoints when a peremptory challenge should be made,” the opinion says, and quoting from it, declares:

“In a postjudgment proceeding where no hearing date has been set and the court has not made “a determination of contested fact issues relating to the merits,”…a peremptory challenge is timely if made before the commencement of the hearing, or before the court considers and evaluates the petition before granting relief.”

The cited segment of the statute provides that where the challenge is “directed to the trial of a criminal cause that 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.”

The opinion notes:

“Because a petition for resentencing is not ‘the trial of a criminal cause,’ the all purpose assignment rule does not apply in this postjudgment context.”

Civil Cases

The Superior Court’s order rejecting Scott’s challenge also made reference to §170.6(a)(3), which says:

“A party to a civil action making that motion under this section shall serve notice on all parties no later than five days after making the motion.”

Thursday’s opinion terms that portion of the statute “inapt,” explaining:

“…Scott is not ‘[a] party to a civil action.’ He is seeking resentencing of his conviction under his original criminal case number.”

The opinion specifies:

“In the interest of justice, the opinion in this matter is deemed final as to this court forthwith and the clerk is directed to issue the remittitur forthwith.”

Div. Three’s panel was comprised of Acting Presiding Justice Richard D. Fybel and Justices Richard M. Aronson and David A. Thompson.

The case is Scott v. Superior Court, G057606.

On Friday, in Legare v. Superior Court, G057694, the same panel issued a peremptory writ of mandate in the first instance ordering the Orange Superior Court, in a case with a like fact situation, to accept a challenge to  Judge Kimberly K. Menninger. The petitioner, Jason Paul Legare, pled guilty in 1992 to second-degree murder in connection a 1991 slaying; he drove the car from which the actual killer fatally shot the victim.

New Statute

Scott’s petition was brought pursuant to Penal Code §1170.95, signed into law on Sept. 30 of last year. The statute authorizes resentencing, in some instances, of a person convicted of murder by virtue of the felony murder rule or the natural and probable consequences doctrine.

Scott was not the primary culprit in the 1981 robbery, stabbing, and disfigurement of Larry Lee Miner, who was left bound with an electrical cord, with his ankles tied behind his back to his neck, resulting in asphyxia. Police apprehended Scott after he tried to use Miner’s credit card at a K-Mart store.

Sec. 1170.95 was added by SB 1437. Prickett on Feb. 8 held that the measure violates the state Constitution because it contravenes propositions approved by voters which can only be done by a supermajority, while the bill was passed with only a simple majority.

There have been conflicting rulings on the issue throughout the state.


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