Robles v. Superior Court (110 Cal. App. 4th 1510, 2003)

Opinion

VOGEL (MIRIAM A.), J.

In Paredes v. Superior Court (1999) 77 Cal.App.4th 24, 26 [91 Cal.Rptr.2d 350], “one of two defendants timely moved to disqualify the trial judge and the cause was reassigned. (Code Civ. Proc., § 170.6.) When the last day on which the case could be tried arrived and the prosecutor was unable to proceed, the case was dismissed (Pen. Code, §§ 1382, 1387), then refiled (Pen. Code, § 1387) and assigned to the same judge to whom it had been previously assigned. [] The other defendant then moved to disqualify the judge, who denied the motion on the ground that the refiled action [was] a ‘continuation’ of the dismissed action.” We disagreed and held that “a finding that the refiled case was but a continuation of the terminated case would be tantamount to a somewhat oxymoronic ‘compelled express consent’ under ... section 1387.2,” which permits the parties to consent to rearraignment in the existing action. (Paredes v. Superior Court, supra, 77 Cal.App.4th at p. 36.) We said that, “[although it appeared] obvious that a genuine stipulation according to the terms authorized by ... section 1387.2 would mean there was only one case (since nothing would be dismissed, nothing refiled), that issue [was] not [then] before us and we [did] not decide it.” (Paredes v. Superior Court, supra, 77 Cal.App.4th at p. 36.)

In the case now before us, where there was a genuine stipulation according to the terms authorized by section 1387.2, we hold there was only one case for purposes of section 170.6.

BACKGROUND

On May 2, 2002, an information was filed charging Ernesto Gallegos Robles with nine counts of attempted murder (with various enhancement allegations), and the case was assigned to the Honorable Ronald S. Coen. Robles entered a plea of not guilty and did not move to disqualify Judge Coen. When the case was called for trial on January 17, 2003, the prosecutor was unable to proceed. Judge Coen’s minute order for that day states; “In lieu of dismissing [this] case, and upon agreement of all parties[,] the court is treating the existing information as a new pleading pursuant to ... section 1387.2. [f] Time begins tolling this date as 0 of 60. [][] The defendant is rearraigned and pleads not guilty to all charges and denies allegations. [][] Matter is assigned to this court for all further proceedings.”

On January 21, Robles filed a motion to disqualify Judge Coen. (§ 170.6.) Relying on our dicta in Paredes v. Superior Court, supra, 77 Cal.App.4th 24, Judge Coen struck the challenge as untimely. Robles filed a petition for a writ of mandate in which he asked us to compel Judge Coen to honor the challenge. We summarily denied the petition, and Robles then filed a petition for review by the Supreme Court. The Supreme Court granted review, stayed all proceedings in the trial court, and transferred the matter back to us with directions to issue an alternative writ.

DISCUSSION

A.

As relevant, section 1382, subdivision (a)(2), provides that, absent good cause, the trial court must dismiss a felony case “when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information .... ” As relevant, section 1384 provides that “[i]f the judge ... directs the action to be dismissed, the defendant must, if in custody, be discharged there from....” As relevant, section 1387 provides: “(a) An order terminating an action pursuant to this chapter ... is a bar to any other prosecution for the same offense if it is a felony ... and the action has been previously terminated pursuant to this chapter ... except in those felony cases ... where subsequent to the dismissal of the felony ... the judge or magistrate finds [certain specified conditions exist].”

As relevant, section 1387.2 provides that, “[u]pon the express consent of both the people and the defendant, in lieu of issuing an order terminating an action the court may proceed on the existing accusatory pleading. For the purposes of Section 1387, the action shall be deemed as having been previously terminated. The defendant shall be rearraigned on the accusatory pleading and a new time period ... shall commence.” (Italics added.)

“Read together, these statutes mean that a felony case once dismissed for delay can be refiled, but (subject to certain exceptions) a felony case twice dismissed for delay cannot. In short, a third or subsequent prosecution is barred. [Citations.] When the first action is terminated under this procedure and the People file a new complaint, a second preliminary hearing must be held and the evidence subjected anew to a magistrate’s evaluation. [Citation.] In lieu of a required dismissal and permitted refiling, the parties may agree to proceed on the existing accusatory pleading, with the action ‘deemed’ to have been ‘previously terminated’ [for purposes of section 1387]. ( ... § 1387.2.) These statutes exist to protect a defendant’s right to a speedy trial and must be construed to serve that overriding purpose. [Citation.]” (Paredes v. Superior Court, supra, 77 Cal.App.4th at pp. 28-29, italics added.)

B.

As relevant, section 170.6 provides: “(1) No judge ... shall try any civil or criminal action ... nor hear any matter therein ... when it shall be established ... that the judge ... is prejudiced against any party or attorney or the interest of any party or attorney appearing in the action .... [f] (2) Any party to or any attorney appearing in any such action ... may establish this prejudice by an oral or written motion ... supported by affidavit or declaration ... that the judge ... before whom the action ... is pending or to whom it is assigned is prejudiced against any such party or attorney .... If directed to the trial of a 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 ... within 10 days after notice of the all purpose assignment.... [