People v. Richard

Opinion

In this appeal from a judgment of conviction of first degree murder and of first degree burglary with the infliction of great

We conclude that the motions to disqualify the trial judge made in the case at bench were untimely. We also conclude that a contention of trial court error in failing to instruct sua sponte is not supported by the record. Accordingly, we affirm the judgment.

170.6 Motion

Defendant, James P. Richard, was charged with first degree murder, with first degree burglary, and with having inflicted great bodily injury in the commission of the latter crime. Richard was arraigned on January 14, 1976, and entered his plea of not guilty. The public defender was appointed as his counsel. Trial was set for January 21 and then continued by stipulation to March 1, 1976. On Richard’s successive motions, the case was continued to October 25, 1976, when it was again continued to November 29 because of “defendant’s late disclosure to his counsel of possible defense witnesses.” By stipulation, trial was continued to December 13 and again on defendant’s motion to April 27, 1977. On that date, Richard’s motion to relieve the public defender and to proceed in pro. per. was granted. The case was continued to May 2 due to a congested calendar. On May 2, the trial judge denied defendant’s motions pursuant to Penal Code sections 995 and 1538.5 and continued the trial to the next day. On the morning of May 3, with jury selection scheduled to commence, Richard, now acting in pro. per., refused to leave the “lockup” for the courtroom. He stated that he was not prepared because he needed further research. The court continued the matter until the afternoon to let Richard decide whether he would come to court. The afternoon of May 3, Richard appeared and stated he was not ready for trial. Noting that Richard appeared to be engaged in a tactic of delay, the trial judge continued the trial to May 11. He admonished Richard that if Richard again refused to participate in his defense the court would revoke Richard’s pro. per. privileges and appoint counsel to represent him. Richard moved to disqualify the trial judge for prejudice pursuant to subdivision 5 of Code of Civil Procedure section 170 and peremptorily pursuant to Code of Civil Procedure section 170.6. The 170.6 motion was

Trial commenced to a juiy on May 12. On May 23, the juiy reported itself deadlocked. A mistrial was declared and the matter continued to May 25, 1977, for trial setting and motions. On May 25, trial was set for June 27 in the department of the same judge who had presided at the first trial. On June 20, Richard again filed a motion to disqualify the trial judge pursuant to Code of Civil Procedure section 170.6. The motion was denied as untimely. The retrial resulted in Richard’s conviction.

In this appeal, Richard contends that the trial court lacked jurisdiction to proceed because of his motions pursuant to Code of Civil Procedure section 170.6.

The first motion. Code of Civil Procedure section 170.6, which permits what is in effect a peremptory disqualification of a trial judge, provides in part that: “Where the judge . . . 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 [to disqualify] shall be made at least five days before that date. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. . . .”

Here the matter was set for trial on May 3. The identity of the trial judge had been known to Richard long before 10 days prior to May 3. His first motion to disqualify the judge pursuant to Code of Civil Procedure section 170.6 was not made “at least five days” prior to the date for which trial was set.

Thus, unless the continuance of the matter from May 3 to May 11 commenced a new five-day period for filing the motion, the trial court properly denied it as untimely.

On the record here, the continuance did not commence the period anew.

We note at the outset that, in language at least, the California cases are in disarray concerning the effect of a continuance upon the timeliness of a motion pursuant to Code of Civil Procedure section 170.6. Cases such as Eagle Maintenance & Supply Co. v. Superior Court (1961) 196 Cal.App.2d 692 , 695 [ 16 Cal.Rptr. 745 ], Woodman v. Selvage (1968) 263 Cal.App.2d

While Wilks, by applying an ultra-strict test of timeliness in the master calendar situation, tends to validate the line of cases which applies a strict test of timeliness where a continuance is involved, we need not determine the case at bench on that premise.

The liberal rule of the one line of cases, which holds that the five-day period begins anew when a continuance of a trial date is granted, must be construed to be limited to those situations where the continuance is sought in good faith for good cause. A party who has allowed the time for a section 170.6 motion to expire may not be permitted to extend it by his own bad faith conduct which prevents a trial from beginning on the date set for it. Here substantial evidence supports the trial court’s determination that the last continuance was not sought in good faith but as a delaying tactic. Richard’s intransigence in refusing- to leave the lockup for the courtroom after he had been granted his Faretta right of

The second motion. Because a section 170.6 motion must be made before trial, “it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.” (Jacobs v. Superior Court (1959) 53 Cal.2d 187 , 190 [ 1 Cal.Rptr. 9 , 347 P.2d 9 ], declared applicable to the current version of Code Civ. Proc., § 170.6 in Solberg v. Superior Court (1977) 19 Cal.3d 182 , 198, fn. 13 [ 137 Cal.Rptr. 460 , 561 P.2d 1148 ].) Similarly, a motion pursuant to Code of Civil Procedure section 170.6 is untimely if made after the judge has presided at a proceeding involving a determination of contested issues of fact relating to the merits. (Code Civ. Proc., § 170.6, subd. (2); see Andrews v. Joint Clerks etc. Committee (1966) 239 Cal.App.2d 285 , 295 [ 48 Cal.Rptr. 646 ].) The motion to disqualify the judge who has previously presided over the matter is deemed untimely where subsequent proceedings are a continuation of it to vindicate a policy against permitting a litigant “to gamble on obtaining a favorable decision from one judge, and then, if confronted with an adverse judgment, [allowing the litigant] to disqualify him without presenting facts showing prejudice, in the hope of securing a different ruling from another judge . . . .” (Jacobs v. Superior Court, supra, 53 Cal.2d 187 , 191.) The identical policy is seemingly the foundation for the requirement that the motion to disqualify be made before the judge has presided over a hearing on contested issues of fact going to the merits.

The timeliness of Richard’s second motion to disqualify the trial judge thus turns upon the legal effect to be given the proceedings which resulted in a mistrial because of the jury’s failure to agree. If the reinstituted trial is in legal effect a continuation of the earlier proceedings, or if the trial judge to whom the motion is directed is deemed to have presided over a hearing on contested issues of fact going to the merits of the case, then the motion is not timely. If, however, the earlier proceedings leading to the mistrial are ignored, the motion was timely filed.

Conclusion. We hence conclude that Richard’s motions to disqualify the trial judge pursuant to Code of Civil Procedure section 170.6 were untimely and therefore properly denied.

Sua Sponte Instruction

The residence of Annette Weingarten was burglarized and Ms. Weingarten was murdered in the process. Richard was connected with the crimes by his fingerprints found on a window screen at the point of entry to the Weingarten home, his opportunity to “case” the location by his presence at his nearby girl friend’s apartment during the preceding month, and by the signature of “James Richard” on a pawnbroker’s identification document recording the pawning of a watch taken in the burglary. Inconsistent statements made by Richard with respect to his having been in the Weingarten yard near the window screen preceding the burglary corroborated his guilt.

Richard’s defense consisted of testimony by his girl friend, Yolanda Scott. Ms. Scott stated she and two companions, not including Richard, had gone to the Weingarten home and found the screen broken off the window and protective ironwork on it bent. Ms. Scott related that she and her companions had entered the Weingarten home where one of the

The trial court instructed the jury on the definition of burglary and of felony murder. It instructed on the defense of alibi, but also that if the evidence established beyond a reasonable doubt that the defendant aided and abetted the commission of the offenses charged, “the fact, if it is a fact, that he was not present at the time and place of the commission of the alleged offense for which he is being tried is immaterial and does not, in and of itself, entitle him to an acquittal.” The trial court instructed that, “All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who with knowledge of the unlawful purpose of the perpetrator of the crime aid and abet in its commission or, whether present or not, who advise and encourage its commission, are regarded by the law as principals in the crime thus committed and are equally guilty thereof.” The court defined aiding and abetting, stating: “A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.”

Richard does not challenge either the accuracy or applicability of the juiy instructions given by the trial court. He, however, points to the proposition that the defense testimony supports his guilt of the uncharged and unincluded offense of accessory after the fact. While conceding that he did not request an instruction that an accessory after the fact is not an aider and abettor, Richard contends that the trial court was required by the defense testimony to so instruct the jury on its own motion.

We conclude that the contention lacks merit.

The duty of a trial court to instruct on its own motion and without a request to do so extends only to “ ‘the general principles of law relevant to the issues raised by the evidence’ ” i.e., “ ‘those principles closely and openly connected with the facts before the court, and which are necessary for the juiy’s understanding of the case.’ ” (People v. Sedeno (1974) 10 Cal.3d 703 , 715 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ].) Here the jury was instructed that an aider or abettor must, with knowledge of the unlawful purpose of the perpetrator of the crime, aid, promote, encourage, instigate, or advise the criminal act. That definition instructs on the

Disposition

The judgment is affirmed.

Lillie, Acting P. J., and Hanson, J., concurred.

A petition for a rehearing was denied October 23, 1978, and appellant’s petition for a hearing by the Supreme Court was denied November 30, 1978.