Magana v. Super. Ct.

Filed 4/27/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
EUDORO MAGANA,
Petitioner, A153981
v. (San Mateo County
THE SUPERIOR COURT OF SAN Super. Ct. No. 16-SF-005960)
MATEO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
Defendant Eudoro Magana is charged with two counts of rape. After his trial date
was continued four times, defendant’s trial counsel, Daniel Everett, sought a fifth
continuance, but failed to appear for the hearing on the motion, and the case was assigned
out to trial. Everett then exercised a peremptory challenge (Code Civ. Proc., § 170.6)1
against the trial judge to whom the case was first assigned, resulting in its assignment to a
second judge. Everett then sought to exercise a second peremptory challenge and, when
that proved unsuccessful, filed a “motion for recussal [sic] of judge” (§ 170.1) asserting
that the trial judge was biased against Everett because he had declined to meet in
chambers with counsel to discuss settlement. However, Everett voluntarily withdrew that
motion before the judge could address it.
On the second day of trial, Everett filed a motion to appoint an expert to testify
that his client’s confession was involuntary. The trial judge ruled that Everett was not
prepared to proceed to trial and was not providing Magana with adequate representation
All further statutory references are to the Code of Civil Procedure unless
1
otherwise indicated.
1
and continued the trial. The prosecution then requested the court to remove Everett as
counsel, asserting that the court had a duty to preserve the integrity of the judicial process
and to preserve all parties’ right to a speedy trial. Following a hearing, the trial court
granted that motion, finding that due to Everett’s conduct, the alleged victim, the
prosecution, and the defendant had been denied their right to a speedy trial, and that it
had no faith that Everett would be prepared to take the case to trial on a timely basis.
Defendant now brings a petition for writ of mandate or prohibition, challenging
both the trial judge’s refusal to disqualify himself and his removal of defense counsel.
We shall deny the petition. Defendant withdrew his first statement of disqualification,
and the trial court correctly found his second statement of disqualification was untimely.
Further, a trial court has authority to remove defense counsel to ensure that adequate
representation is provided, and to prevent substantial impairment of court proceedings.
While such authority is to be sparingly exercised and reserved for only the most
exceptional cases, the trial court did not abuse its discretion in finding that this is just
such a case and removing counsel.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was arraigned in May 2016 on a complaint charging him with two
counts of rape (Pen. Code, § 261, subd. (a)(2).) In June 2016, attorney Daniel Everett
substituted in as defendant’s attorney of record.
The case was initially set for trial on March 27, 2017. Everett moved to continue
the trial, which was then rescheduled for May 22, 2017.
Court was scheduled to begin at 8:45 a.m. on May 22. Everett did not arrive until
11:50 a.m., and then made an oral motion to continue the trial based on a need to conduct
further investigation into a purported allegation of sexual assault that the victim
previously made against a third party. The court granted the continuance over the
prosecution’s objection. Trial was re-set to July 10, 2017. On July 5, the prosecution
moved to continue the trial based on witness unavailability. Defendant did not object.
The court moved the trial date to November 6, 2017.
2
On November 6, 2017, Everett indicated he was not prepared to proceed to trial
and asked for another continuance, his third such request. The prosecution objected. The
court, after advising the parties that no courtrooms were available, granted the
continuance and moved the trial date to February 20, 2018.
On February 20, 2018, the parties were scheduled to appear for trial at 8:45 a.m.
Everett was not present. Another attorney indicated that Everett was detained elsewhere
and would be moving for a continuance. The matter was transferred to the afternoon
master calendar before the Honorable Jonathan E. Karesh.
Everett appeared late for the afternoon calendar. The court first took up the
defendant’s motion for a further continuance of the trial. Everett admitted that the
motion was “skimpy.” He explained to the court that his motion was based on a
conversation he had recently with a potential witness named Benito Zapata, against
whom he claimed the alleged victim in the case had filed a false claim in 1999.
According to Everett, Zapata would “be able to take the stand and say that she [the
victim] has a reputation within the community of saying these sorts of things and making
up these sorts of things that, in and of itself, the whole case could hinge upon. [¶] . . .
And, that alone, that is a very important aspect of this case.” Everett admitted that Zapata
had not been subpoenaed, but asserted that the defense had just learned of him “[w]ithin
the last 72 hours.” Everett sought a continuance of one week.
To support his request for a continuance, Everett forwarded an email to Judge
Karesh that showed an email conversation Everett had with his defense investigator
regarding Zapata. It was dated November 7, 2017, making it over three months old. In
the email, the investigator explained to Everett that he and another investigator had
interviewed Zapata, the victim’s former work supervisor, by telephone on June 2, 2017.
The investigator stated in the email that Zapata “knew nothing about [the victim]
accusing anyone of sexual misconduct.” The investigator continued: “Mr. Zapata also
made it clear . . . that he wanted ‘nothing to do with’ our investigation or ‘going to court.’
[¶] Seemed like a non-witness at the time and unless he has new information or a reason
3
he withheld info in the first interview is not someone who should be subpoenaed to a
trial.”
After reviewing the email, Judge Karesh noted that it was “completely different”
than what Everett had represented; the email showed that Everett had been aware of
Zapata for months, and that Zapata would not provide testimony favorable to the defense.
Everett responded that there were additional emails that Judge Karesh had not read.
Judge Karesh asked Everett to send the emails to the court and permitted Everett to leave
the courtroom to send the emails.
Everett then left the courtroom. Without warning or explanation, Everett did not
return, leaving his client, the prosecutor, and the judge waiting for nearly an hour for him
to return. As a result, Judge Karesh was unable to rule on the continuance motion or to
assign the case out for trial. Judge Karesh instructed the defendant to return to court the
following morning, and asked the courtroom clerk to instruct Everett to return the
following morning as well.
The following morning, February 21, Everett did not show up to court at the start
of proceedings. Judge Karesh told defendant that “we’re sort of put in a difficult
position. I don’t know where your lawyer is.” Defendant stated that Everett had called
him the night before and said he would be in court. Everett eventually appeared in court
later that morning. Judge Karesh asked Everett to explain his absence from the previous
day. Everett said he left the courtroom the previous afternoon because he gets better
reception on his cell phone from outside the courtroom, which makes it easier to send
emails. Everett also told the court that his understanding was that another attorney, John
Lee, had appeared for him earlier in the day, and that Lee had informed the court that
Everett would need to leave early. Judge Karesh said he was not so informed. In fact,
the courtroom bailiff stated that he had gone to another courtroom to talk to Lee, who
told the bailiff that he would not be standing in for Everett because of the serious charges
that defendant was facing. Everett did not notify the court clerk of his appointment either.
Judge Karesh then asked Everett if he had the additional emails he referenced
from the previous day. Everett said he did, and, as he did the day before, asked Judge
4
Karesh for permission to step outside of the courtroom to send them. Judge Karesh
declined, saying, “Mr. Everett, you did that yesterday and disappeared without telling the
Court. Why would I let you do that again?” After confirming that the prosecution was
ready to proceed to trial, Judge Karesh then assigned the case for trial to Judge Steven
Dylina. Everett immediately exercised a peremptory challenge (§ 170.6) against Judge
Dylina. Judge Karesh accepted the challenge, and assigned the case for trial to a second
judge, the Honorable John L. Grandsaert.
The parties appeared before Judge Grandsaert later the same morning. Everett
indicated that he was not ready to proceed to trial. Everett once again sought to continue
the trial and referenced the same emails he had tried to send to Judge Karesh that
purportedly showed he had only recently located a witness who would testify that the
victim had previously made false allegations against third parties. The prosecutor
objected to the continuance request and informed Judge Grandsaert about the proceedings
before Judge Karesh. Nevertheless, Judge Grandsaert said he would review the emails to
determine whether there was good cause for a continuance since Judge Karesh did not
appear to have issued a formal ruling on the issue. Judge Grandsaert granted Everett’s
request to allow him a brief recess to print the emails.
The emails are not in the record before us, but were described by Judge Grandsaert
during the hearing. The first email was dated February 15, 2018 from Everett to his
investigator. Everett stated he spoke to a person named Benito, who had information that
Everett believed would impeach the victim in this case. The second email is a response
from the investigator stating he will “get on it right away.” The final email was sent by
the investigator to Everett on February 20 and provided Everett with a case number from
a 1999 case against Zapata. Judge Grandsaert asked Everett if he had any other
information that would support his request for a continuance. Everett offered none, but
claimed that “everything in these emails down to the font completely corroborates exactly
what I had said both before this court, in front of counsel, and in front of Judge Karesh.”
He contended that “the conversation with Benito [Zapata] was extraordinary in scope in
that it directly went to the credibility of the alleged victim. It is the time bomb that us on
5
the defense have been waiting for.” He asserted that “in my view, as Mr. Magana’s
defense counsel, it is absolutely 110 percent necessary that we get this individual into
court, whether he is compelled to come to court or comes voluntarily.”
Everett asserted that his investigator had attempted to subpoena Zapata. The court
observed that nothing in the record before it addressed how long the investigator would
need to subpoena him or explained why he had not been subpoenaed earlier. The court
suggested that Everett have the investigator appear to explain what he had done to
subpoena the witness, and observed that Everett had not indicated how much time he was
requesting for a continuance.
Everett then claimed he had an additional email that contained “sensitive
information” that he wanted to redact before showing to the court. The email was
another one from the defense investigator, who stated that Zapata was uncooperative in
being served with a subpoena or voluntarily coming to court. Everett again asserted that
there had been an attempt to subpoena Zapata, but said, “We’ve only had five days to do
so.” In response to later questions from the court, however, Everett was unable to tell the
court how many attempts had been made to serve Zapata and at what times of day.
Judge Grandsaert expressed the tentative view that the defense had not exercised
reasonable diligence or shown good cause for a continuance. However, Judge Grandsaert
said he would allow the investigator to appear in court to provide additional evidence
supporting the continuance request.
Everett then moved for the appointment of an expert witness “in the area of false
confessions due to language barriers.” Everett explained that after speaking to the
investigator, it “became quite obvious” that “false confessions” would be “a major issue
in the trial” because police had elicited a confession from defendant during an interview
that was conducted in English, defendant’s second language. He asserted that the need
for such an expert had “just bec[o]me obvious,” although he had been counsel since May
2016. Everett had not filed the motion or a motion to suppress defendant’s confession,
and as a result, the court did not have copies of them.
6
Judge Grandsaert gave Everett until 1:30 p.m. to present any additional evidence
that would constitute good cause for a continuance, and encouraged him to present the
investigator as a witness. Everett assured Judge Grandsaert that “absolutely no effort will
be spared in obtaining [the investigator’s] presence here at 1:30.”
When the parties returned at 1:30, rather than present testimony or other evidence
on the motion to continue, Everett immediately sought to exercise a peremptory
challenge against Judge Grandsaert. Judge Grandsaert denied the request because Everett
had already exercised a peremptory challenge. Everett then filed a “motion for recussal
[sic] of judge” for cause pursuant to section 170.1, asserting that Judge Grandsaert “has a
bias against me” because he had declined to discuss possible settlement of the case in
chambers with counsel. Everett stated in his declaration that he is a black male “with a
practice dedicated to the criminal defense of predominately black and brown males,” and
that he found Judge Grandsaert’s unwillingness to meet in chambers with counsel to
discuss possible settlement “very odd, but somewhat in keeping with what I [f]eel is
ostensibly disparate treatment by Judges in San Mateo County.” After a brief recess,
however, Everett withdrew the motion (“Your Honor, at this time, the defense will
withdraw the motion”), and the trial judge conducted an in-chambers settlement
conference with the parties’ consent.
Following the settlement conference, which was unsuccessful, Everett again raised
the continuance request. He indicated that it “would not be necessary” to produce his
investigator, but provided an additional email from him that the court summarized as
stating that “he has not attempted to serve Mr. Benito Zapata with a trial subpoena
because . . . Mr. Zapata has expressed that he would refuse to cooperate and did not wish
to testify regarding any information he may have.” Everett acknowledged that Zapata
was not cooperative, but claimed that he had provided “substantially material information
that has the potential of exonerating Mr. Magana in these proceedings.” He conceded the
fact that Zapata is uncooperative was “in no way, shape, or form is a good reason to not
compel someone to come to court,” but again asserted that the defense had had only “a
very short window” within which to subpoena him. Accordingly, he requested “a very
7
brief continuance.” The court observed that although the witness had refused to be
interviewed by the defense investigator, and did not “sound like a promising witness,” the
defense still would have at least several days before needing to present any witnesses.
The court did not find good cause to continue the trial, particularly “in light of the fact
that there’s been no attempt to subpoena whatsoever,” and denied the motion.
Everett then returned to his request to retain an expert on false or coerced
confessions. In colloquy with the court regarding the defense theory, Everett took the
position that expert testimony regarding defendant’s statement “would be the crux of the
defense.” In response to the court’s question as to why he had not filed such a motion
before trial commenced, given that the language issues should have been apparent to him
when he undertook defendant’s representation in May 2016, Everett’s explanation was
that he had primarily communicated with defendant in “broken Spanish” with the help of
defendant’s wife and, therefore, was unaware of defendant’s lack of proficiency in
English. Judge Grandsaert granted Everett leave to file a written motion seeking an
expert. The parties were ordered to return to court the next day, February 22, at 9:00 a.m.
On February 22, Everett again appeared in court late, asserting that the delay was
due to a medical issue about which he had apparently informed the judge by email. The
court criticized Everett for engaging in ex parte communications with the court without
copying the prosecutor, an “oversight” that Everett acknowledged. With respect to the
defense’s motion for appointment of an expert on the subject of false confessions, the
court observed that the authorities cited in that motion did not address confessions at all,
but instead related to eyewitness identification. Everett acknowledged that his motion
was “boilerplate,” but still claimed it was consistent with seeking appointment of an
expert in false confessions.
After a brief recess, Judge Grandsaert decided to grant a continuance because he
believed that Everett was not prepared for trial and that his representation was depriving
the defendant of a fair trial. Judge Grandsaert explained:
“I do not believe that the defendant is receiving a fair trial. I do not believe that
his attorney is properly prepared. I do not believe that the proper authorities are
8
being cited to the court. I do not believe that in an issue that is important with
regard to expert testimony being requested on the eve—no, on the day of trial, that
that is adequate representation.”
Judge Grandsaert continued the trial by more than 60 days, to April 30.
In the interim, the prosecution filed a motion requesting the trial court to remove
Everett as defense counsel, which the trial court set for hearing on March 16. The
prosecution argued that Everett’s conduct in this case threatened the integrity of the
judicial process and cast serious doubt on whether defendant was receiving
constitutionally effective representation. Judge Grandsaert gave Everett until March 7
to file a response to the motion. He did not do so.
Everett again arrived late for the March 16 hearing. Once he appeared, Everett
again attempted to exercise a peremptory challenge against Judge Grandsaert, but
conceded that he was precluded from filing a second challenge because he had already
used one against a different judge. Everett then argued that although he had withdrawn
his prior challenge for cause to Judge Grandsaert, the trial judge nonetheless lacked
jurisdiction to conduct any further proceedings in the case. Everett then sought to file a
second such challenge, asserting that he had been unfairly treated by Judge Grandsaert
during the prior month’s hearings. Judge Grandsaert denied the challenge as untimely.
Everett claimed that he had not read the prosecution’s supplemental brief in
support of the motion to remove him as counsel because it was sent to him via email
without his consent—despite his own extensive use of email to attempt to file and serve
pleadings. Everett defended his repeated requests for continuances, at one point claiming
“you would have to be an absolute idiot if you did not want to have your cases
continued” because empirical data shows that defendants fare better when cases are
pending for a longer time. He again asserted that the “real crux” of the trial would turn
on the expert testimony regarding defendant’s ability to understand, comprehend, and
reply during his interrogation by the police; “If we have the expert, we will win the case.”
After lengthy argument, he concluded by proclaiming: “The defense is ready. We have
our expert. We have our witnesses. We have swagger as far as the eye can see. The
9
time for motions are over. We are ready to try the case. If it be in front of your honor,
you should take notes.”
Judge Grandsaert granted the motion and removed Everett as counsel. We quote
Judge Grandsaert’s ruling in its entirety:
“It is this court’s responsibility to ensure that every defendant receives a
fair trial. That in turn requires that a defendant be represented by a competent
attorney acting as a diligent, conscientious advocate.
“The court must also weigh the defendant’s right to retain his own counsel
with the court’s duties to ensure, number one, that his attorney is effectively
representing him; number two, that his attorney is able to comply with the court’s
schedule and rules; and number three, that the public interest in the effective and
efficient administration of justice is honored.
“In this case, based upon the conduct of Mr. Everett, I’m going to do
something I have never done before. I am going to grant the plaintiff’s motion to
remove Daniel Everett from this case.
“On February 20th, [defendant’s] case was set for trial. There have been
four prior continuances of his case. His case had been filed two years earlier.
“Mr. Everett was in court for that fifth setting. Mr. Everett was late for
every court appearance before this court, morning and afternoon, every single
time. I thought that that was something that I could remedy with Mr. Everett, and
I was not going to allow that to be the basis for taking any other action that would
have affected [defendant’s] case and Mr. Everett’s representation of him.
“What I could not set aside, however, was the lack of due diligence and the
lack of competence of his attorney. The most incriminating evidence against
[defendant] was the testimony of the alleged victim in the case and, number two,
[defendant’s] confession.
“Mr. Everett and his investigator learned of a potential impeaching witness
back in November of last year. That witness had provided some information that
might have led a diligent attorney to follow up with his client or his own
investigation to determine what that witness might be able to testify to.
“In this case, instead, what we were met with on the second day of trial was
Mr. Everett advising the court that he needed a further continuance to talk to this
witness because he himself, not with an investigator present, had gleaned
additional impeaching information from this previously known witness, and that
10
they had the witness’s address in San Jose, and that attempts had been made to
serve a subpoena on this witness without success.
“However, in his investigator’s email, what was shared was that no attempt
had been made to serve that witness as of 2/21, the second day of trial.
“The other most incriminating evidence is the defendant’s confession. It
was clear from a cursory review of that confession that the defendant’s first
language was Spanish and that there were language issues that could be raised
surrounding the interrogation.
“Yet, despite the passage of two years, Mr. Everett on the fifth date set for
trial made his first request for an expert on the issue of culture, and language, and
false confessions. Mr. Everett told the court that this was, as he maintains again
today, the most important issue in the case. Yet, his brief filed on the date set for
trial, the fifth setting, asking for an expert was completely unbased on any kind of
citations applicable to the issue of false confessions. Instead, it was based on false
identification cases. It couldn’t be more clear to the court as the trial judge that I
could not make a ruling on this motion in light of the fact that Mr. Everett’s
advocacy on this issue was completely inadequate, and incompetent, and showed
no diligence whatsoever.
“I was forced to continue the case once again. The alleged victim, the
people, and the defendant even were denied their right to a speedy trial.
“I have no confidence that anything is going to be different. Defense
counsel has told me today that it is the duty of every defense attorney to seek
further continuances. He advises me that he’s ready. I don’t believe that that is
the case. I had signed no paperwork with reference to an expert. If an expert was
independently obtained, it certainly was not listed on the witness list. I have no
faith that this matter will proceed to trial on a timely basis based on the activities
of Mr. Everett in this case.
“Mr. Everett, you are removed from this case.”
Everett, on behalf of defendant, then filed the instant writ petition. He makes two
challenges. First, he claims that Judge Grandsaert should have disqualified himself after
Everett filed his second challenge for cause. Second, he argues that Judge Grandsaert
should not have removed him as counsel. We requested a preliminary opposition from
the Attorney General. After reviewing the Attorney General’s opposition, we solicited a
11
reply from Everett. We also informed the parties that due to the unusual urgency of this
matter, the court may issue a peremptory writ in the first instance, or the court may deny
the petition without oral argument by a written opinion on the merits that determines a
cause and constitutes law of the case. (See Frisk v. Superior Court (2011) 200
Cal. App. 4th 402, 407-408, 413–417 [following similar procedure in denying petition for
writ of mandate seeking review of denial of peremptory challenge to judge].)
DISCUSSION
I. THE TRIAL COURT DID NOT ERR IN STRIKING DEFENDANT’S
SECOND CHALLENGE FOR CAUSE AS UNTIMELY.
Defendant challenges the trial judge’s refusal to disqualify himself after Everett
presented a second statement of disqualification on March 16, 2018.2 He asserts: (1) that
the court clerk erred in marking the statement “received” rather than “filed” and (2) that
the trial judge’s rulings were void because he refused to disqualify himself or send the
statement of disqualification to another judge for review.3
2
Defendant contended below that the trial court lacked jurisdiction by virtue of
Everett having filed the first statement of disqualification on February 21, 2018, even
though Everett withdrew that challenge before the trial judge could address it. He did not
repeat that argument before this court in his petition, and has therefore forfeited it, despite
his belated attempt to resurrect it in his reply brief. “We will not ordinarily consider
issues raised for the first time in a reply brief.” (American Indian Model Schools v.
Oakland Unified School Dist. (2014) 227 Cal. App. 4th 258, 275.) In any event, it lacks
merit. Whether or not defendant’s “withdrawal” of his first challenge for cause was
effective, defendant waived any challenge to the trial judge’s actions by permitting the
proceedings to go forward without objection. (See Frisk v. Superior Court, supra, 200
Cal.App.4th p. 409 [“Peremptory challenges do not implicate the court’s fundamental
jurisdiction and may be waived by litigants who permit the proceedings to go forward
without objection”]; Stebbins v. White (1987) 190 Cal. App. 3d 769, 780-781 [same]; see
In re Christian J. (1984) 155 Cal. App. 3d 276, 280 [“it is clear that the right to urge the
disqualification of a judge for most causes under section 170 and peremptorily under
section 170.6 may be waived by the parties”].)
After filing the writ petition, defendant filed a “supplement” to the petition. It
3
seeks judicial notice that on October 18, 2016, Everett had filed a statement of
12
Defendant’s first contention warrants little discussion. The record reflects that
when Everett presented the second statement of disqualification, the trial judge directed it
to be marked as received and then reviewed it. Thus, it was “personally served on the
judge alleged to be disqualified, or on his or her clerk,” which is all that the statute
requires. (§ 170.3, subd. (c)(1).) Further, the trial judge promptly ruled on the statement
immediately after Everett presented it. Thus, it is undisputed that the trial court did not
refuse to consider the statement. Whether the stamp the court clerk placed on the
document read “received” or “filed” is inconsequential.
Defendant’s second argument fails to address the basis for the trial court’s ruling:
that the challenge was untimely. Once a statement of disqualification is filed, the judge
generally has three options. He or she may: (1) request any other judge agreed upon by
the parties to sit and act in his place (§ 170.3, subd. (c)(2)); (2) within 10 days of the
objection, “file a consent to disqualification” (§ 170.3, subd. (c)(3)); or (3) file “a written
verified answer admitting or denying any or all of the allegations . . . .” (Ibid.) Failure to
take any action is deemed a consent to disqualification. (§ 170.3, subd. (c)(4).)
However, there is a fourth option, the one taken by the trial judge here, which defendant
ignores: “if a statement of disqualification is untimely filed or if on its face it discloses no
disqualification against a third judge, the Honorable Stephanie Garratt, who had issued a
bench warrant against defendant and an OSC re contempt against Everett for failing to
appear at an earlier scheduled court appearance. The supplement alleges that Judge
Garratt did not respond to the statement. It further contends that on February 20, 2018,
Judge Garratt “ruled that the case was confirmed for trial,” and that all subsequent orders
made by any judge in the case were void. Defendant made no such contention below,
and has therefore forfeited it here. In any event, it lacks merit, and is unsupported by the
single case he cites. The incomplete court minutes attached to the supplement reflect that
the case was originally assigned to Judge Garratt for trial and then reassigned to Judge
Karesh. Judge Garratt did not hear or rule on defendant’s motion to continue or decide
any other matter in connection with the case.
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legal grounds for disqualification, the trial judge against whom it was filed may order it
stricken.” (§ 170.4, subd. (b).)4
Section 170.3 provides that a written verified statement of disqualification shall set
forth the facts constituting the grounds for disqualification of the judge, and “shall be
presented at the earliest practicable opportunity after discovery of the facts constituting
the ground for disqualification.” (§ 170.3, subd. (c)(1), italics added.) “This strict
promptness requirement is not to be taken lightly, as a failure to comply constitutes
forfeiture or an implied waiver of the disqualification. [Citation.] Thus, when a
statement of objection is untimely filed, it is appropriate for the trial court to order it
stricken. [Citations.].” (Tri Counties Bank v. Superior Court, supra, 167 Cal.App.4th at
p. 1337.) “The purpose of the requirement that alleged grounds for disqualification be
asserted at the earliest practicable opportunity is that ‘ “ ‘[i]t would seem . . . intolerable
to permit a party to play fast and loose with the administration of justice by deliberately
standing by without making an objection of which he is aware and thereby permitting the
proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he
may avoid, if not.’ ” ’[Citations.] In other words, ‘[a] party should not be allowed to
gamble on a favorable decision and then raise such an objection in the event he is
disappointed in the result.’ [Citation.] Consequently, if a party is aware of grounds for
disqualification of a judge but waits until after a pending motion is decided to present the
statement of objection, the statement may be stricken as untimely.” (Id. at pp. 1337–
1338; see also People v. Scott (1997) 15 Cal. 4th 1188, 1207.)5
4
It is of no significance that the trial judge “denied” the challenge rather than
“striking” it. Just as Everett did in titling his statement of disqualification, courts
sometimes describe a party’s filing under section 170.3, subdivision (c), as a “motion” to
disqualify. (Tri Counties Bank v. Superior Court (2008) 167 Cal. App. 4th 1332, 1336, fn.
3.)
5
Defendant cites only one case on the subject, but that case does not support his
position. (Hayward v. Superior Court (2016) 2 Cal.App.5th 10, review granted Nov. 9,
2016, S237174, review dism. and cause remanded, Mar. 1, 2017.) There, an attorney
serving as a temporary judge failed to disclose professional relationships she had had
14
Before presenting the second statement on March 16, Everett represented that it
“gives some additional facts after Your Honor had ruled” and “deals with proceedings
after [the prior hearings].” It did not. Even a cursory reading of the second statement
reveals that all of the purported facts it recites as a basis for recusing the trial judge
related to events that had occurred nearly one month earlier, on February 21 and February
22, when the case was first assigned to Judge Grandsaert for trial. Indeed, the second
statement largely repeated the same complaints that Everett had made in the first
withdrawn challenge. Under the circumstances, the trial judge did not abuse his
discretion in denying the challenge as untimely. Thus, contrary to defendant’s
arguments, the trial judge was not powerless to act, since once he properly struck
defendant’s statement of disqualification as untimely, “[t]here was nothing for an
independent judge to review.” (Crawford v. JPMorgan Chase Bank, N.A. (2015) 242
Cal. App. 4th 1265, 1272; accord PBA, LLC v. KPOD, Ltd. (2003) 112 Cal. App. 4th 965,
973 [because statement of bias was properly stricken according to the statutory
procedure, trial judge’s subsequent orders were valid].)
Even if Everett’s second challenge had not been untimely, it is doubtful whether it
was legally sufficient on its face. Everett repeated his complaint from the first challenge
that Judge Grandsaert had declined to meet with counsel in chambers to discuss
settlement—a complaint that, since it applied equally to the prosecutor, was hardly a
basis for concluding that the judge harbored bias or prejudice toward him or his client. In
the second statement, Everett added that the trial judge required Everett but not opposing
with lawyers in the case. After a party filed a statement of disqualification, the presiding
judge of the superior court ordered the temporary judge disqualified, and ruled that she
was deemed to have consented to her disqualification as a result of her failure to file a
consent or verified answer to the statement. Here, in contrast, the trial judge did not fail
to disclose any ground for disqualification, and he promptly struck the statement as
untimely.
15
counsel to stand while addressing the court (a contention disproven by the record),6 that
the trial judge “seemed visibly upset” with Everett, that he admonished Everett for
improperly engaging in ex parte communications with the court, and that he questioned
Everett on why he was repeatedly late to court. All of these complaints are either false,
trivial, or establish that the trial court understandably questioned Everett’s misconduct.
None of them, singly or collectively, comes close to supporting Everett’s allegation that
“the totality of circumstances here would lead anyone to believe that the Judge could not
act fairly towards me, a black male.”
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
REMOVING DEFENSE COUNSEL.
In a single paragraph of his petition devoid of any citation to authority, defendant
argued, “Case law is clear that a Judge does not have the ability to remove a retained
criminal defense attorney.” Defendant asserted “there is no precedent that would allow a
court to deny a criminal defendant the counsel of their choosing, especially not under the
circumstances here.” In his reply brief, defendant for the first time makes three
additional, inconsistent arguments. First, he concedes that there is authority providing
that a court may relieve retained counsel, but contends it applies only if there is an
established conflict of interest or if it is shown that the attorney is not physically able to
represent a defendant. Second, he insists that the superior court lacks “jurisdiction” to
remove defense counsel for incompetence, and that in such a situation, “the State
Supreme Court is the only court having jurisdiction to take direct action.” Third, he
insists “there has never been a California case that has upheld the removal of privately
retained defense counsel based on a trial judge’s subjective determination that the
defendant was not receiving ‘competent’ representation.” Defendant’s arguments are
irreconcilable with controlling authority, and verge on the frivolous.
The trial judge explained that he had required Everett to stand to address the
6
court because Everett had repeatedly interrupted counsel when seated, and that he had
required both counsel, not just Everett, to stand. The record supports both assertions.
16
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall . . . have the [a]ssistance of [c]ounsel.” “[A]n
element of this right is the right of a defendant who does not require appointed counsel to
choose who will represent him.” (United States v. Gonzalez-Lopez (2006) 548 U.S. 140,
144.) However, “while the right to select and be represented by one’s preferred attorney
is comprehended by the Sixth Amendment, the essential aim of the Amendment is to
guarantee an effective advocate for each criminal defendant rather than to ensure that a
defendant will inexorably be represented by the lawyer whom he prefers.” (Wheat v.
United States (1988) 486 U.S. 153, 159.) Thus, the Sixth Amendment right to chosen
counsel is “not absolute” (Maxwell v. Superior Court (1982) 30 Cal. 3d 606, 613,
disapproved on another ground in People v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22),
but rather is “circumscribed in several important respects.” (Wheat v. United States
(1988) 486 U.S. 153, 159.)
“A trial court may remove defense counsel, even over defendant’s objections, ‘in
order to eliminate potential conflicts, ensure adequate representation, or prevent
substantial impairment of court proceedings . . . .’ [Citation.].” (People v. Richardson
(2008) 43 Cal. 4th 959, 995.) In particular, “a court has the discretion to remove counsel
who cannot try his or her client’s case at the appointed time.” (Williams v. Superior
Court (1996) 46 Cal. App. 4th 320, 332.) Although it is generally either the defendant or
his counsel who requests the removal of counsel, “[c]ounsel may also be relieved on the
trial court’s own motion, over the objection of the defendant or his counsel . . . .”
(People v. Cole (2004) 33 Cal. 4th 1158, 1187.) A trial court’s authority to remove
counsel does not depend on whether he or she is retained or is appointed counsel
representing an indigent criminal defendant. (People v. Strozier (1993) 20 Cal. App. 4th
55, 62 [holding that “the court had the right to remove appellant’s privately retained
counsel”].)
“On appeal, the trial court’s removal of counsel is reviewed for abuse of
discretion. ‘ “A court abuses its discretion when it acts unreasonably under the
circumstances of the particular case.” ’ [Citation.] ‘Inherent in the question whether a
17
trial court may disqualify a criminal defense attorney over the defendant’s objection is
the conflict between the defendant’s preference to be represented by the attorney and the
court’s interest in “ensuring that criminal trials are conducted within the ethical standards
of the profession and that legal proceedings appear fair to all who observe them.” ’
[Citations.].” (People v. Richardson, supra, 43 Cal.4th at pp. 995–996.)
To be sure, we acknowledge that, as our high court has cautioned, “ ‘[t]he
involuntary removal of any attorney is a severe limitation on a defendant’s right to
counsel and may be justified, if at all, only in the most flagrant circumstances of attorney
misconduct or incompetence when all other judicial controls have failed.’ [Citations.]”
(People v. Daniels (1991) 52 Cal. 3d 815, 846; see also, e.g., Maxwell v. Superior Court,
supra, 30 Cal.3d at p. 613 [California decisions “limit severely the judge’s discretion to
intrude on defendant’s choice of counsel in order to eliminate potential conflicts, ensure
adequate representation, or serve judicial convenience”].) Nevertheless, “[w]hile we
recognize that courts should exercise their power to remove defense counsel with great
circumspection [citations], they nevertheless retain the obligation to supervise the
performance of defense counsel to ensure that adequate representation is provided.”
(People v. McKenzie (1983) 34 Cal. 3d 616, 630, abrogated on other grounds in People v.
Crayton (2002) 28 Cal 4th 346, 365.) For the following reasons, we conclude that on the
unusual facts presented here, the trial court did not abuse its discretion in removing
Everett as counsel.
At the threshold, we pause to identify the key constitutional and statutory
provisions implicated by the trial court’s ruling. (See People v. Cole, supra, 33 Cal.4th at
p. 1188.) First, article I, section 29 of the California Constitution provides, “In a criminal
case, the people of the State of California have the right to due process of law and to a
speedy and public trial.” Second, Penal Code section 1050 provides, in pertinent part,
that “the people, the defendant, and the victims and other witnesses have the right to an
expeditious disposition, and to that end it shall be the duty of all courts and judicial
officers and of all counsel, both for the prosecution and the defense, to expedite these
proceedings to the greatest degree that is consistent with the ends of justice.” Finally,
18
Penal Code section 987.05 provides in pertinent part that “In cases where counsel, after
making representations that he or she will be ready for . . . trial, and without good cause
is not ready on the date set, the court may relieve counsel from the case and may impose
sanctions upon counsel.” Thus, contrary to defendant’s contention that “[t]he sole
statutory authority for the removal of counsel is Code of Civil Procedure section 284,”7
Penal Code section 987.05 explicitly authorizes trial courts to relieve counsel whose lack
of preparedness threatens to deprive other parties, including the People and the victims of
a crime, of their right to a speedy trial.
Applying these principles, courts have upheld orders removing defense counsel,
both retained and appointed, where counsel was unprepared on the assigned trial date or
was providing inadequate representation. For example, in People v. Strozier, supra,
defendant’s trial for attempted murder was twice continued at his request. (20
Cal.App.4th at p. 59.) When the matter was called for trial, defense counsel requested a
two-week continuance of the trial date on the grounds that his investigators were having
difficulties subpoenaing three witnesses. (Ibid.) The trial court denied the request for
continuance without prejudice, put the case over six days, and stated that defendant could
renew his motion on the next date. (Ibid.) On that date, defendant again requested a two-
week continuance on the same grounds. (Ibid.) Defense counsel advised the court that if
the continuance was not granted, he would be “incompetent” to represent defendant.
(Ibid.) The trial court offered to trail the matter until the end of the week if counsel
would indicate that he would be ready to try the case at that time. (Ibid.) Counsel would
not make such a commitment, and the trial court then relieved him as counsel for
defendant and appointed another attorney. (Ibid.)
The Court of Appeal rejected defendant’s argument that his due process rights
were violated by the trial court’s order relieving his retained counsel. (People v. Strozier,
supra, 20 Cal.App.4th at p. 61.) “The concept of due process, as it relates to the right of
7
Penal Code section 987.05 was enacted by initiative in 1990 (see Raven v.
Deukmejian (1990) 52 Cal. 3d 336, 345), after the 1968 decision upon which defendant
primarily relies.
19
counsel, must be weighed against ‘. . . other values of substantial importance, such as
assurance of an orderly and speedy determination of criminal charges . . . .’ [Citation.]”
The court pointed to section 1050 as embodying the Legislature’s recognition of the
importance of a prompt resolution of criminal matters, “not only from the defendant’s
viewpoint, but also for the benefit of the people of the State of California and victims of
criminal activity.” (Ibid.) It held first that the trial court did not abuse its discretion in
denying defendant’s request for a continuance. (Id. at pp. 61–62.) It then squarely held
that the court had the right to remove defendant’s privately retained counsel. (Id. at
p. 62.) “A trial court has discretion to remove counsel on its own motion when removal
is necessary in order to prevent disruption of the orderly processes of justice under the
circumstances of the particular case.” (Ibid.) As it explained, removal of defendant’s
counsel did not violate defendant’s due process rights:
“At the hearing, [defendant’s] counsel represented that he would be ‘incompetent’
to proceed to trial even if the case were trailed four more days, and he could not
give the trial court any assurances that he would be ready to proceed to trial at that
time. Since [defendant’s] counsel, by his own admission, was incompetent to try
the case within the set trial date or dates, the trial court had little other alternative
except to relieve him.”
(Ibid.; see also, e.g, People v. Avila (2009) 46 Cal. 4th 680, 695–696 [trial court properly
removed appointed counsel in capital case to prevent substantial impairment of the court
proceedings where, inter alia, counsel sought to continue trial but “gave no assurance he
would be prepared for trial on [continued date], but rather only represented that he would
be ready at some indeterminate point after a year had passed”]; People v. Mungia (2008)
44 Cal. 4th 1101, 1119–1125 [trial court did not abuse its discretion when it removed
public defender as defendant’s counsel of record, based on its conclusion that the public
defender would not bring defendant’s case to trial within a reasonable time]; People v.
Cole, supra, 33 Cal.4th at p. 1188 [trial court did not abuse its discretion in removing
alternate defense counsel as counsel of record where, before doing so, it granted several
defense motions for continuances and not unreasonably viewed with skepticism counsel’s
latest assurances of a readiness date]; cf. People v. Freeman (2013) 220 Cal. App. 4th 607,
20
610 [court of appeal, on its own motion, removed retained counsel, whose briefing had
“unreasonably interfered with and disrupted the orderly process” of the appeal].)
Defendant relies heavily on Smith v. Superior Court 68 Cal. 2d 547, a 1968
decision in which our Supreme Court ruled that a trial judge does not have “the power to
remove a court-appointed defense attorney, over the objections of both the attorney and
the defendant, on the ground of the judge’s subjective opinion that the attorney is
‘incompetent’ because of ignorance of the law to try the particular case before him.” (Id.
at p. 549.) In a more recent decision that defendant does not cite, however, our high
court ruled to that the extent that the holdings in Smith and in three other decisions were
based on the federal constitution, they had been “superseded” by the Supreme Court’s
decision in Wheat v. United States, supra. (People v. Jones (2004) 33 Cal. 4th 234, 243–
244.) Further, in Jones, the California Supreme Court squarely held that when a trial
court removes a defense attorney because of a potential conflict of interest, “the court is
seeking to protect the defendant’s right to competent counsel. In such circumstances,
there is no violation of the right to counsel guaranteed by article I, section 15 of the state
Constitution.” (Id. at pp. 244–245.) Thus, Smith is no longer good authority. (See also
Center Foundation v. Chicago Ins. Co. (1991) 227 Cal. App. 3d 547, 557 [“For 22 years,
the trial and appellate courts of this state have recognized that Smith should be limited to
its facts”].) In any event, Smith’s holding was limited to court-appointed counsel. (See
id. at p. 245, fn. 3 [“We need not decide whether the state Constitution permits a
defendant to insist on being represented by a retained attorney who has a potential
conflict of interest, for here defendant’s attorney was appointed by the court, not
privately retained by defendant”].)
Here, we conclude that the trial court did not abuse its discretion in removing
Everett as counsel for two reasons, either of which independently justified its action.
First, the trial court found that Everett was not prepared for trial and was not providing
adequate representation to defendant. There is ample evidence in the record before us to
support that finding. On the first day set for trial, Everett had not yet retained an expert
witness whose testimony, he asserted, would be critical—indeed central—to his client’s
21
defense. Indeed, he asserted, such testimony “would be the crux of the defense.” “The
whole trial is probably going to depend on it. It will undoubtedly depend on this whole
issue.” Yet when questioned by the trial court as to why he hadn’t pursued the matter
earlier, Everett had no answer. And when the trial court then gave Everett additional
time to file a motion explaining the need for the expert testimony, Everett filed what he
described as a “boilerplate motion” that addressed an entirely different issue: false
eyewitness identification of suspects. Nor had Everett subpoenaed a third-party witness
whose testimony he asserted would be essential to impeach the alleged victim’s
testimony.
Defendant asserts that unlike Strozier, where counsel admitted his own
incompetence to represent the defendant unless a continuance was granted, here Everett
“had explicitly stated that he was ready for trial and intended to win said trial.” Nowhere,
however, does defendant address Everett’s assertions to the trial court that Zapata’s
testimony would be “the time bomb that us on the defense have been waiting for” and
that “in my view, as Mr. Magana’s defense counsel, it is absolutely 110 percent necessary
that we get this individual into court.” Nor does he explain how it was that Everett could
have been “ready for trial” when he had just told the trial judge, almost in the same
breath, that expert testimony from an expert whom he had not yet retained “would be the
crux of the defense” and that “[t]he whole trial is probably going to depend on it. It will
undoubtedly depend on this whole issue.” If those representations were true, Everett, by
his own admission, was not prepared on the day set for trial to competently represent
defendant. As a result, “the trial court had little other alternative except to relieve him.”
(People v. Strozier, supra, 20 Cal.App.4th at p. 62; see also Pen. Code, § 987.05; see
generally Burnett, Ethical Dilemmas Confronting A Felony Trial Judge: To Remove Or
Not To Remove Deficient Counsel (2000) 41 So. Tex. L.Rev. 1315, 1319, fn. omitted
[arguing that judges should be authorized to remove counsel, or to consider doing so,
“when counsel’s performance raises serious questions about the quality of the
representation being provided”].)
22
Second, the trial court also was justified in removing Everett to prevent substantial
impairment of the court proceedings. Although the trial of the case had been continued
four previous times, the trial court understandably had no confidence that Everett ever
would be ready to proceed with trial in a timely fashion. The record makes clear that the
trial judge was entirely justified in reaching that conclusion. Among other things:
• Everett had learned months earlier of a key impeaching witness, but as of the first
day of trial, still had not served that witness with a subpoena to testify or,
apparently, made any effort to do so;
• Everett claimed that expert testimony regarding language and false confessions
would be critical to challenging his client’s confession, yet as of the first day of
trial he still had not retained an expert witness or taken the necessary steps to have
one appointed;
• The brief Everett belatedly filed regarding the admissibility of such expert
testimony addressed an entirely different (and irrelevant) issue, that of eyewitness
identification;
• Everett appeared on the first day of trial unprepared to file a key motion to
suppress his client’s confession, written in limine motions, a witness list, or
proposed jury instructions;
• Everett engaged in improper ex parte communications with the court; and
• Everett consistently appeared late for court appearances.
We could go on, but the point is made: there was ample reason for the trial court to
conclude both that Everett was not providing Magana with effective representation, and
that it was doubtful that he would be prepared by the time of the next trial date to
competently try the case. Under the circumstances, it did not abuse its discretion in
removing him as counsel.
A trial judge faced with a situation like this one “is placed in a difficult dilemma:
‘If a . . . court agrees to the . . . representation, and the advocacy of counsel is thereafter
impaired as a result, the defendant may well claim that he did not receive effective
23
assistance. [Citation.] On the other hand, a . . . court’s refusal to accede to the . . .
representation may result in a challenge such as petitioner’s in this case.’ [Citation.]”
(People v. Jones, supra, 33 Cal.4th at p. 241.) We recognize that the trial judge removed
Everett as counsel against defendant’s wishes. “But the trial court need not always
accommodate the defendant’s preference. ‘The essential aim “is to guarantee ‘an
effective advocate for each criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers.’ ” ’ [Citations.]” (People v.
Mungia, supra, 44 Cal.4th at p. 1124.) The trial judge in this case struck the proper
balance in light of the competing concerns at stake.
III. DEFENSE COUNSEL’S MISCONDUCT WARRANTS REFERRAL TO
THE STATE BAR.
We address one final topic: whether Everett’s conduct warrants referral to the
State Bar for investigation and possible disciplinary action. We are compelled to
conclude that it does.
A court “shall notify the State Bar” whenever, inter alia, “a modification or
reversal of a judgment in a judicial proceeding is based in whole or in part on the
misconduct, incompetent representation, or willful misrepresentation of an attorney.”
(Bus. & Prof. Code, § 6086.7, subd. (a)(2).) We believe that the misconduct at issue here
is sufficiently serious that the State Bar should be made aware of it. (See In re Aguilar
(2004) 34 Cal. 4th 386, 389-394 [referring attorneys held in contempt for failing, without
adequate justification, to appear for oral argument before California Supreme Court, and
for lying to court].
Judge Grandsaert’s findings here, which we affirm, establish a clear violation of
Rule 3-110 of the Rules of Professional Conduct [failing to act competently], and at least
a prima facie violation of Rule 5-200(B) and Business & Professions Code section 6068,
subdivision (d) [misrepresentation to a judge of fact or law by artifice or false statement].
What we see on this record may even have provided the basis for a contempt citation had
Judge Grandsaert chosen to proceed in that fashion. (See Chula v Superior Court (1962)
24
57 Cal. 2d 199, 205 [attorney’s failure to appear at scheduled time without valid excuse is
a species of direct contempt and may be punished summarily].) But separate and apart
from these issues, of most serious concern to us is Everett’s conduct in repeatedly
accusing the experienced trial judge and several of his colleagues of racial animus toward
him and his client, and in utilizing those accusations as a basis for seeking to disqualify
those judges from hearing the case, without any apparent good faith basis for doing so.
Like any other verified pleading, a statement of disqualification under sections
170.1 and 170.3 must not be presented primarily for an improper purpose, such as to
cause unnecessary delay, and its allegations and other factual contentions must have
evidentiary support.8 (§ 128.7, subd. (b)(1),(3).) Here, the record strongly suggests to us
that neither requirement was met. We are unable to find any substantial factual basis in
the record for Everett’s accusations and, as discussed above, neither of the statements he
filed discloses any such basis on its face. Further, it is readily apparent to us that Everett
repeatedly used challenges for cause to disqualify (or to attempt to disqualify) judges as a
delaying tactic, rather than out of any facts that could support a good faith belief that the
challenged judges actually harbored any bias or prejudice against him or his client.
This is particularly troubling because “a motion to recuse a judge is not just
another procedural or evidentiary motion. It is a direct attack on one of the basic
8
In this regard, a challenge for cause is very different from a peremptory challenge
under section 170.6. Section 170.6 “allows for the disqualification of judges based upon
the mere ‘ “belief of a litigant” that he cannot have a fair trial before the assigned judge.’
[Citations.]” (People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892, 899.) “The
right is ‘automatic’ in the sense that a good faith belief in prejudice is alone sufficient,
proof of facts showing actual prejudice not being required.” (McCartney v. Commission
on Judicial Qualifications (1974) 12 Cal. 3d 512, 531, overruled on another ground in
Spruance v. Commission on Judicial Qualifications (1975) 13 Cal. 3d 778, 799, fn. 18.)
A challenge for cause under section 170.3, in contrast, confers no such automatic right.
Rather, if the challenged judge files a written verified answer, it must be heard and
determined by another judge, who may “hear evidence on any disputed issue of fact.” (§
170.3, subd. (c)(6).) It follows that a lawyer who files such a challenge must have a good
faith factual basis for doing so, and that the factual basis must appear on the face of the
statement. (§ 170.4, subd. (b).)
25
principles of our judicial system, the impartiality of trial courts. If such a motion is made
when a case is close to trial, it necessarily calls into question the administration of justice.
And the making of such a motion impacts unfavorably upon the public’s perception of
the administration of justice.” (In re Order To Show Cause (N.D. Cal. 1990) 741 F. Supp.
1379, 1381.) We recognize, of course, that “[a]ttorneys owe high duties to their clients to
defend their cases fully, vigorously, and even with arguments which might be offensive
or ultimately unsuccessful. This is particularly true in criminal cases, where the clients’
liberties are at stake, and where the adequacy of the attorneys’ representation can raise
constitutional issues.” (Ibid.) But “defense attorneys are also officers of the court and
owe duties, which can be even higher duties, to the administration of justice.” (Ibid.) “A
motion to recuse a trial judge is inherently offensive to the sitting judge because it
requires the moving party to allege and substantiate bias and prejudice—traits contrary to
the impartiality expected from a mortal cloaked in judicial robe. Yet the fair
administration of justice requires that lawyers challenge a judge’s purported impartiality
when facts arise which suggest the judge has exhibited bias or prejudice. The appropriate
mechanism for such a challenge is a motion to recuse.” (U.S. v. Cooper (1st Cir. 1989)
872 F.2d 1, 4, fn. omitted.)
Thus, an attorney who believes that a judge is biased or prejudiced against him or
his client unquestionably is entitled to seek that judge’s recusal by filing a statement of
disqualification—“so long as his affidavit in support of the motion to recuse was made in
good faith and made no factual misrepresentations.” (U.S. v. Cooper, supra, 872 F.2d at
p. 4; accord In re Order To Show Cause, supra, 741 F.Supp. at p. 1382.) Nor may such a
challenge be made with an improper purpose, such as delay. Because, as we discuss
above, the record here strongly suggests to us that Everett disregarded these fundamental
precepts, we have no alternative but to refer him to the State Bar for investigation and
possible disciplinary action.
26
DISPOSITION
We deny the petition for writ of mandate and/or prohibition and the supplemental
petition. This denial becomes final as to this court 30 days after filing. Further, pursuant
to Business and Professions Code section 6086.7, subdivision (a)(2), the clerk of this
court is directed to forward to the State Bar a copy of this opinion.
27
_________________________
Schulman, J.*
We concur:
_________________________
Streeter, Acting P.J.
_________________________
Reardon, J.
*
Judge of the Superior Court of California, City and County of San Francisco, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Magana v. The Superior Court of San Mateo County (A153981)
28
Magana v. The Superior Court of San Mateo County (A153981)
Trial Court: San Mateo County Superior Court
Trial Judge: Honorable John L. Grandsaert
Counsel for Petitioner Law Offices of Daniel Everett and Daniel Everett.
Eudoro Magana:
Counsel for Respondent No appearance.
The Superior Court of San
Mateo County:
Counsel for Real Party in Xavier Becerra, Attorney General, Gerald A. Engler,
Interest Chief Assistant Attorney General, Jeffrey M.
The People: Laurence, Senior Assistant Attorney General,
Laurence K. Sullivan, Supervising Deputy Attorney
General, René A. Chacón, Supervising Deputy
Attorney General, Stephen M. Wagstaffe, District
Attorney for San Mateo County, Sharon K. Cho,
Deputy District Attorney for San Mateo County.
29