Jones v. Superior Court CA1/2 ( 2024 )

Filed 10/14/24 Jones v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
DAMIAN JONES,
Petitioner,
A171238
v.
(Solano County Sup. Ct.
No. VCR239963)
SOLANO COUNTY SUPERIOR
COURT,
Respondent.
PEOPLE OF THE STATE OF
CALIFORNIA,
Real Party in Interest.
BY THE COURT1:
Petitioner seeks a writ of mandate directing respondent court to vacate
its September 3, 2024 “Second Motion to Strike Additional Challenge as
Legally Insufficient IAW CCP170.4(b)” and to “grant a hearing” on
1 Before Stewart, P.J., Miller, J., and Desautels, J.
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Petitioner’s August 26, 2024 “Additional and Independent Challenge for
Cause” (additional challenge).2
On September 13, 2024, this court requested informal opposition and
reply to the petition from real party in interest, and included notice that the
court might direct issuance of a peremptory writ in the first instance. (Palma
v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180.) On
September 16, 2024, the Attorney General filed a letter stating that, after
consultation with the Solano County District Attorney’s Office, “the People
lack a sufficient interest in the outcome of this proceeding to respond to the
claims raised” and declined to take a position on the petition’s merits.
In accordance with our notification to the parties that we might do so,
we will direct issuance of a peremptory writ in the first instance. Petitioner’s
right to relief is obvious, and no useful purpose would be served by issuance
of an alternative writ, further briefing, and oral argument. (Ng v. Superior
Court (1992) 4 Cal.4th 29, 35; see Lewis v. Superior Court (1999) 19 Cal.4th
1232, 1236–1237, 1240–1241; Brown, Winfield & Canzoneri, Inc. v. Superior
Court (2010) 47 Cal.4th 1233, 1240–1244.)
DISCUSSION
Petitioner’s additional challenge alleged Judge Bowers was disqualified
because a person aware of the facts might reasonably entertain a doubt that
the judge would be able to be impartial. (Code Civ. Proc. § 170.1, subd,
(a)(6)(A)(iii).) “This standard is ‘ “fundamentally an objective one. It
represents a legislative judgment that due to the sensitivity of the question
2 To the extent Petitioner also challenges the August 21, 2024 “Motion to
Strike Challenge as Legally Insufficient IAW CCP170.4(b) and Verified
Answer IAW CCP170.3(c)(3),” the petition, filed September 6, 2024, is
untimely as to that order. (Code Civ. Proc. § 170.3, subd. (d).)
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and inherent difficulties of proof as well as the importance of public
confidence in the judicial system, the issue is not limited to the existence of
an actual bias. Rather, if a reasonable [person] would entertain doubts
concerning the judge's impartiality, disqualification is mandated.” ’ ”
(Bassett Unified School Dist. v. Superior Court (2023) 89 Cal.App.5th 273,
285, quoting Jolie v. Superior Court of Los Angeles County (2021) 66
Cal.App.5th 1025, 1039-1040.) “ ‘ “[A] judge faced with a potential ground for
disqualification ought to consider how his participation in a given case looks
to the average person on the street.” ’ ” (Id. at p. 286.)
To support his additional challenge, Petitioner alleged Judge Bowers
exhibited bias against defense counsel when the judge expressed in open
court “his opinion about the quality of defense counsel in a negative manner
and suggested the possibility and option of removing and replacing defense
counsel.” The additional challenge further alleged that Judge Bowers
expressed his negative opinion of defense counsel’s representation despite
Petitioner himself not complaining about, or expressing a desire to replace,
defense counsel. In response, on September 3, 2024, Judge Bowers struck
Petitioner’s additional challenge as legally insufficient. (Code Civ. Proc.
§ 170.4, subd. (b) [“if a statement of disqualification…on its face discloses no
legal grounds for disqualification, the trial judge against who it was filed may
order it stricken”].)
Under the objective standard set forth above, however, the allegations
in Petitioner’s additional challenge disclosed grounds to disqualify Judge
Bowers under section 170.1(a)(6)(A)(iii). (Briggs v. Superior Court (2001) 87
Cal.App.4th 312, 319 [when facts are not in dispute, the issue of how an
objective person would view the judge's ability to be impartial is a legal
question reviewed de novo].) Accordingly, Judge Bowers should instead have
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either consented to the disqualification or filed “a written verified answer
admitting or denying any or all of the allegations contained in [Petitioner’s
additional] statement and setting forth any additional facts material or
relevant to the question of disqualification.” (Code Civ. Proc. § 170.3, subd.
(c)(3).) The question of Judge Bowers’s disqualification should then have
been heard and determined by another judge pursuant to the procedures set
forth in subdivisions (c)(5) and (c)(6) of section 170.3.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior
court to vacate its September 3, 2024 “Second Motion to Strike Additional
Challenge as Legally Insufficient IAW CCP170.4(b)” and to determine
Petitioner’s August 26, 2024 “Additional and Independent Challenge for
Cause” in accord with this opinion and the procedure set forth in subdivisions
(c)(5) and (c)(6) of section 170.3 of the Code of Civil Procedure.
In the interests of justice and to prevent further delays, this decision
shall be final as to this court immediately. (Cal. Rules of Court,
rule 8.490(b)(2)(A).) The remittitur will issue immediately upon the finality
of this opinion as to this court, should the parties so stipulate. (Cal. Rules of
Court, rules 8.272(c)(1) and 8.490(d).)
The stay imposed on September 13, 2024 shall dissolve upon issuance
of the remittitur.
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