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Name: Jones v. Superior Court (Nevada County)
Case #: C080359
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 04/08/2016

The one-judge-court deadline to challenge a judge under Penal Code section 170.6, does not apply to branches of a superior court for which there is only one assigned judge. Petitioners were charged with a drug offense in the Truckee branch of the Nevada County Superior Court. The file-endorsed copy of the complaint stated that the matter was assigned to a specified judge for all purposes. Petitioners filed a challenge against the judge (Pen. Code, § 170.6), which was denied as untimely under the 30-day deadline imposed for a one-judge court. Petitioners filed a petition for writ of mandate/prohibition. Held: Petition granted. Section 170.6 delineates the procedure whereby a litigant may exercise a peremptory challenge against a superior court judge and imposes certain procedural deadlines. Generally, a section 170.6 challenge is allowed at any time before the commencement of trial or a hearing, subject to certain shorter deadlines set forth in subdivision (a)(2). Pertinent to this case, if the court in which the action is pending is authorized to have no more than one judge, the challenge must be made within 30 days from the date of the first appearance. This “one-judge” deadline predates unification of the municipal and superior courts at a time when the Government Code authorized only one judge for some counties. Today, at least two superior court judges are authorized for every county (Gov. Code, §§ 69580-69611). In fact, there are six authorized judges for Nevada County. A branch of the superior court with only one assigned judge is not the same as a court for which a single judge is authorized. Thus, the judge here erred by applying the one-judge-court deadline to deny petitioners’ challenge.

The fact that there is only assigned judge for the Truckee branch of the Nevada County superior court does not require application of the one-judge-court deadline for filing a Penal Code section 170.6 challenge. Only the Government Code determines how many judges are authorized in each county as a whole. The number of judges is not divided by branch or division of the court; judges may be assigned to various branches of the superior court and may move from one branch to another as needed. The fact that one judge may be assigned to a particular branch of the superior court does not mean that only one judge is authorized, which is the limitation set forth in connection with the deadline in section 170.6, subdivision (a)(2).

The shorter deadline in section 170.6 for cases assigned to one judge “for all purposes” does not apply until the defendant has actual notice of that assignment; constructive notice is insufficient. Subdivision (a)(2) of section 170.6 also provides a shorter deadline of 10 days from a first appearance before a judge assigned to a case for all purposes. The time begins to run when a party receives notice of an all-purposes assignment. While the judge here was assigned to the case for all purposes, petitioners did not receive actual notice of this fact until they secured a copy of the complaint bearing a stamp that stated the judge was assigned to the case for all purposes; the next day petitioners filed their challenges. The language of section 170.6 subdivision (a)(2) makes clear that actual, rather than constructive notice is required. The petitioners’ challenges were timely.

The full opinion is available on the court’s website here: