Woods

A defendant in a criminal case here seeks a writ of mandate or prohibition requiring respondent court to honor the peremptory challenge she filed against the judge scheduled to try the case. (See Code Civ. Proc., § 170.6.)

Petitioner is charged with violations of Penal Code sections 266h and 266i. In a second case (No. A 814241), petitioner is charged with several other offenses. In December 1986 both cases were awaiting trial. The instant case was set for trial on December 17 in Department Northwest S, where the Honorable Darlene E. Schempp ordinarily presides. The second case was also set for trial in the same department.

On December 4 petitioner filed in both cases essentially identical affidavits of prejudice against Judge Schempp. Judge Schempp honored the peremptory challenge in the second case and transferred it to another department. But in the instant case, she denied the challenge as untimely filed. (See Code Civ. Proc., § 170.4, subd. (b).) On October 30, she had presided at an evidentiary hearing on petitioner’s motion to suppress evidence in the instant case. In rejecting the peremptory challenge, Judge Schempp relied on In re Abdul Y. (1982) 130 Cal.App.3d…