Court of Appeal Upholds OCDA’s Right to File Peremptory Challenge to Disqualify Judge

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COURT OF APPEAL UPHOLDS OCDA’S RIGHT TO FILE PEREMPTORY CHALLENGE TO DISQUALIFY JUDGE

*Study shows defense files 60 percent of judge disqualifications

SANTA ANA, Calif. – The Court of Appeal, Fourth Appellate District, Division Three (DCA), granted the Orange County District Attorney’s Office (OCDA) five writ petitions filed with the DCA, in response to the orders issued in December 2015, by the Honorable Richard M. King, “Order Denying Motion to Disqualify Judge.” The respondent, Orange County Superior Court, filed its response to those writ petitions by the Jan. 15, 2016, deadline. The OCDA’s writ litigation was handled by by Senior Deputy District Attorneys Stephan Sauer and Brian Fitzpatrick of the Appellate & Training Unit.

On Dec. 17, 2015, the OCDA filed five writ petitions with the DCA, challenging the five rulings by Judge King denying prosecutors from utilizing their right to file a peremptory challenge. The five cases include: People v. Jesus Montes and Ismael Zacaula (Case # 12CF2292), People v. Rito Tejeda (case # 14ZF0338), People v. George Galvan (case # 12NF1681), People v. Thomas Wilhelm (case # 12ZF0154), People v. Aleksandar Apostolovic (case # 15ZF0002).

Although the OCDA agrees with the DCA’s ruling, the OCDA maintains that there has never been “blanket papering” of any judicial officer. Any exercise of preemptory challenge made by any member of the OCDA has been the individual prosecutor’s decision to do what is in the best interest of the People, public safety, and crime victims.

The published opinion in its entirety can be found at http://www.courts.ca.gov/4dca.htm. To read the People’s March 25, 2016 reply, please visit www.orangecountyda.org and select, “People v. Rito Tejeda Formal Reply,” in Reports under the Reports pull- down menu.

Law

The California Code of Civil Procedures section 170.6 gives every party the right to exercise a single peremptory challenge against any judge that litigant believes, in good faith, is prejudiced against him or her or his or her case. The authority conveyed by section 170.6 is a substantial right that is part of our system of due process and exists to ensure fair and impartial trials. The law does not require any party to explain their reasons for peremptorily challenging a judge, nor may a court inquire into those reasons. It requires only that the party have a good faith belief that prejudice exists.

Factual study findings that show defense filed most of the judge disqualifications

In January 2016, the OCDA conducted research into how 170.6 challenges were exercised countywide between Feb. 24, 2014, and Dec. 3, 2015, the same period of time examined by Judge King in denying the People’s 170.6 motions. The variables included what judges were challenged, what party filed the challenge – an OCDA prosecutor, a criminal defense attorney, or other, what specific attorney filed the challenge, whether the challenge was granted or denied, and what was the principal felony or misdemeanor count in the underlying case. The limitations included basing the research on electronically-filed cases only and excluded civil cases, challenges filed that were then withdrawn, and cases that were not captured due to computer error.

It was found that a total of 847 challenges were filed against superior court judges in the time frame that was under review. Of the 847 peremptory challenges, most were filed by criminal defense attorneys, 501, which may consist of public, alternate, associate defenders, and private attorneys both retained and appointed. In contrast, OCDA prosecutors filed 340. The Anaheim City Attorney filed five and a victim filed one.

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A total of 40 judges were challenged only by criminal defense attorneys. In contrast, only nine judges were challenged by OCDA prosecutors. It should be noted that Judge Goethals was challenged both by the prosecution and the defense. Even following his ruling recusing the OCDA on People v. Scott Dekraai, prosecutors have consistently litigated their cases in front of Judge Goethals.

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