Pappa
Pappa v. Superior Court
Opinion
lead Opinion
Gibson, J.
Carole Pappa and her codefendant, Doctor Raymond Bernard Pinch, were each charged with murder and conspiracy to commit murder. The action was originally set for trial before Judge James G. Whyte, but he was disqualified upon a challenge by the People pursuant to the provisions of section 170.6 of the Code of Civil Procedure. 1 *353 Judge Clement D. Nye, who was then assigned to hear the case, was disqualified upon a challenge by Pinch under the samo section, and the action was finally tried before Judge Walter R. Evans. The jury was unable to agree, and a mistrial was declared.
The action was set for retrial and is now pending before Judge LeRoy Dawson. Thirteen days prior to the date fixed for commencement of the retrial Mrs. Pappa, who had not previously attempted to exercise any rights under section 170.6, moved to disqualify Judge Dawson pursuant to the provisions of that section. The motion was denied, Mrs. Pappa commenced this proceeding to prevent Judge Dawson from hearing her case, and we granted an alternative writ of prohibition.
Section 170.6 provides that no judge shall try any action or special proceeding when it is established by an affidavit that he is prejudiced…
dissent Opinion
Peters, J.
The majority have misconstrued section 170.6 of the Code of Civil Procedure. As construed by the majority, the statute deprives petitioner of fundamental constitutional rights.
*358 The Legislature, of course, was not required to grant to either civil or criminal litigants the right of peremptory challenge of a judge. But having decided to grant that right, it was required to grant it without discrimination. As interpreted by the majority, the discrimination is direct and apparent.
Section 170.6 was first adopted in 1957. (Stats. 1957, ch. 1055, p. 2228, § 1.) As then enacted, it applied only to civil actions. In 1959 (Stats. 1959, ch. 640, p. 2620, § 1) it was extended to criminal proceedings, apparently because the Legislature wanted to set at rest any possible question of constitutionality based upon discrimination against defendants in criminal actions. But because the statute was first enacted to apply only to civil proceedings and then, without any basic changes, extended to criminal proceedings, grave questions are presented as to whether the statute may be applied in identically the same fashion to both types of proceedings.