Montalvo

Defendant has appealed from his conviction, following trial by jury, of violations of Penal Code sections 664 and 211, attempted robbery, and section 211, robbery. The jury found true the allegation that defendant had used a dangerous weapon in the commission of both offenses.

I

Appellant contends that the court erred in denying his motion, pursuant to Code of Civil Procedure section 170.6, to disqualify the trial judge. We agree and reject the trial court’s conclusion that appellant’s motion was untimely.

Appellant was arraigned in July 1979, at which time he entered a plea of not guilty. On December 20, 1979, before Honorable D. Sterry Fagan, appellant withdrew his not guilty plea and entered a plea of guilty, pursuant to a plea bargain. On April 1, 1980, the court having read a probation report on appellant, appellant was permitted to withdraw his guilty plea. The court found that it could not honor the plea bargain because of information contained in the probation report. The matter was then transferred back to department J, master calendar department, for further proceedings.

On June 16, 1980, the matter was reassigned from master calendar to Judge Fagan’s court…