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Name: D.M. v. Superior Court (Los Angeles County)
Case #: B228530
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 06/17/2011

A challenge to a juvenile court referee on the basis of Code of Civil Procedure section 170.6 was not untimely when the referee had not yet made a determination of contested fact issues and the presiding judge lacked authority to assign a delinquency matter to a referee "for all purposes."

A petition for writ of mandate was timely where the denial of the challenge was not served by written notice. Code of Civil Procedure 170.3, subdivision (d) provides that the writ is to be filed within 10 days after service of entry of the court's order denying…

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Name: C.C. v. Superior Court
Case #: G040580
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 09/11/2008

Civil Procedure Code section 170.6, subdivision (a)(2), which allows a challenge to a judge following reversal on appeal, applies only where the remand requires reexamination of a factual or legal issue, and not where the remand is for the performance of a ministerial act. After the Court of Appeal reversed an order in a juvenile dependency case and "directed the juvenile court to enter a new order denying reunification services ... and to set a permanent plan selection hearing," the attorney of one of the children filed a peremptory challenge to the judge. The judge recused himself in both children's cases to…

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Name: Foosadas v. Superior Court
Case #: C049375
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/22/2005

Appellant was arraigned on a felony complaint and made several appearances before a Commissioner. When his preliminary hearing was set before the Commissioner, he filed a written notice of nonstipulation. The Commissioner disallowed his refusal to stipulate, citing a posted notice that all parties are deemed to have stipulated to a Commissioner acting as a temporary judge unless an oral or written objection is made in open court prior to the commencement of the first hearing on the matter. Petitioner filed a petition for writ of mandate. The appellate court here granted the writ, directing the…

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Name: Hemingway v. Superior Court
Case #: G033896
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 09/30/2004

A defendant’s motion to disqualify a judge cannot be denied as untimely based on the court’s own invalid assignment of the case to itself. Prior to arraignment, the defendant appeared in court without counsel twice before the same judge; the court continued arraignment to allow the defendant to obtain counsel, and assigned the case to itself for all purposes. After counsel was appointed and a preliminary hearing was held, the court arraigned the defendant on the information and again assigned the case to itself for all purposes. Counsel subsequently moved under California Code of Civil Procedure section…

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Name: People v. Superior Court (Cooper)
Case #: H025229
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/18/2003
Subsequent History: Rehrg. den. 1/15/04

Unlike a relitigated motion to suppress to under Penal Code section 1538.5, a relitigated motion to suppress raised in the context of a motion to dismiss under Penal Code section 995 need not be heard by the judge who heard the original motion, and Penal Code section 1538.5, subdivision (p), does not bar the prosecution from exercising a peremptory challenge against the judge who granted the motion in the first instance. The court distinguished People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, noting the procedural differences between a 1538.5 motion and a 995…

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Name: Robles v. Superior Court
Case #: B165126
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 07/31/2003
Subsequent History: 5/14/03: Revw. granted & case transferred to COA to vacate orders denying mandate & issue alternative writ. Tr.crt. proceedings stayed pending COA action on writ.

The defendant tried to disqualify the judge assigned after the parties had entered into a genuine stipulation under Penal Code section 1387.2, that in lieu of a required dismissal (for failure to bring to trial within 60 days) and permitted refiling, the parties agreed to proceed on the existing accusatory pleading with the action deemed to have previously terminated under section 1387. Under these circumstances, there was only one case for purposes of making a Code of Civil Procedure section 170.6 challenge, and thus the motion was…

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Name: Peracchi v. Superior Court (People)
Case #: S103681
Court: CA Supreme Court
District CalSup
Opinion Date: 06/23/2003
Subsequent History: None

Code of Civil Procedure section 170.6, subdivision (2) does not permit a challenge to a trial court judge following remand after appeal, if the sole task left for the trial court is to resentence the defendant. The statute requires assignment to the judge for a "new trial" and resentencing is not such a…

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Name: People v. Superior Court (Jimenez)
Case #: B148656
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 06/28/2001
Subsequent History: Rev. granted 10/10/01 as People v. Los Angeles Superior Court (Jiminez) (S099542)

Editor's note: Review granted. Appellant's motion to suppress evidence was granted and the original action against him was dismissed. A second felony complaint was refiled, which, under Penal Code section 1538.5, subdivision (p), was required to be heard by the same judge who granted the motion at the first hearing, if he is available. Here, the People had filed a peremptory challenge against the judge who had dismissed the first action. Therefore, the judge was not "available," and could not hear the second motion to suppress. Although Penal Code section 1538.5, subdivision (p) was added in…

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Name: People v. Superior Court (Maloy)
Case #: F037893
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/07/2001
Subsequent History: None

Section 170.6 of the Code of Civil Procedure permits the disqualfication of a judge who is reversed on appeal over the issue of whether a prosecution is barred by the statute of limitations. The policy of the statute is to prevent a judge from reacting with a certain pique to the negative treatment of his or her decisions by a higher court. The statute’s requirement that the reversed judge be assigned to conduct "a new trial" is interpreted to include the conducting of a trial after the appellate court concludes the prosecution is not barred by the statute…

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