Richard

In this appeal from a judgment of conviction of first degree murder and of first degree burglary with the infliction of great bodily injuiy, we face the recurring problem of the timeliness of a motion to disqualify a trial judge filed pursuant to Code of Civil Procedure section 170.6. In particular, we consider the timeliness of a section 170.6 motion not made until a defendant in a criminal case has forced a continuance by his intransigence in refusing to appear for trial and of a subsequent section 170.6 motion made after a mistrial declared by reason of the failure of the jury to agree.

We conclude that the motions to disqualify the trial judge made in the case at bench were untimely. We also conclude that a contention of trial court error in failing to instruct sua sponte is not supported by the record. Accordingly, we affirm the judgment.

170.6 Motion

Defendant, James P. Richard, was charged with first degree murder, with first degree burglary, and with having inflicted great bodily injury in the commission of the latter crime. Richard was arraigned on January 14, 1976, and entered his plea of not guilty. The public defender was appointed as his counsel. Trial was…