Filed 8/26/21 Ionescu v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
WILLIAM LIGIU IONESCU,
Petitioner,
v. A162205
THE SUPERIOR COURT OF
CONTRA COSTA COUNTY,
Respondent; (Contra Costa County
THE PEOPLE, Super. Ct. No. 05-191098-3)
Real Party in Interest and
Respondent.
This case is before us following a grant of review and transfer from the
California Supreme Court. The court’s order directed us to vacate our
summary denial of William Ligiu Ionescu’s petition for writ of mandate and
to issue an order to show cause why the petition should not be granted. We
complied. The petition seeks a writ directing the respondent court to vacate
its order striking petitioner’s challenge for cause pursuant to Code of Civil
Procedure section 170.11 and to make a new and different order granting the
challenge or, in the alternative, to accept the challenge for filing and consider
All statutory references are to the Code of Civil Procedure unless
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otherwise specified.
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it on its merits. We find respondent erred by striking petitioner’s challenge
for cause as untimely. We order respondent to accept the challenge pursuant
to section 170.1 and to consider the challenge on its merits pursuant to
section 170.3 et. seq.
BACKGROUND
On May 21, 2019, petitioner was arraigned on a complaint alleging
threats against state officials or judges and criminal threats. Petitioner’s
arraignment and bail hearing were heard by visiting retired Contra Costa
County Superior Court Judge David Flinn. On June 5, 2019, petitioner was
held to answer on all counts at a preliminary hearing before visiting retired
Alameda County Superior Court Judge Lawrence Appel. The information
filed on June 17, 2019, alleges four counts of violation of Penal Code section
76, subdivision (a) (threatening state officials or judges), regarding threats to
Contra Costa County Superior Court Judge John Devine and Contra Costa
County Sheriff David O. Livingston made on May 14, 2019, and May 15, 2019
(counts 1, 3, 5, 7), and four counts of violation of Penal Code section 422,
subdivision (a) (criminal threats; counts 2, 4, 6, 8) regarding Judge Devine
and Sheriff Livingston.
On June 24, 2019, at a hearing before visiting retired Merced County
Superior Court Judge Harry L. Jacobs, petitioner’s counsel expressed doubt
about petitioner’s competency to stand trial pursuant to Penal Code section
1368. Criminal proceedings were suspended while Penal Code section 1368
proceedings were held before Contra Costa Superior Court Judges Clare
Maier and Laurel Brady.2
2Petitioner exercised a Code of Civil Procedure section 170.6 challenge
to Contra Costa County Superior Court Judge Lewis Davis, who was initially
assigned to hear the Penal Code section 1368 proceedings.
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On January 27, 2021, petitioner was found competent to stand trial and
criminal proceedings were reinstated. On February 5, 2021, petitioner was
notified that the case was assigned for all purposes to Department 3, Judge
Patricia Scanlon. On February 9, 2021, petitioner filed a challenge for cause
pursuant to section 170.1, asserting that facts exist such that an average
person might reasonably entertain doubt that Judge Scanlon would be able to
be impartial toward petitioner. Specifically, the challenge asserted that one
of the named victims in the case is Judge Devine, who is a colleague of Judge
Scanlon and that “[t]he relationship between Judge Scanlon and Judge
Devine creates the appearance of bias . . . .” On March 3, 2021, the parties
appeared before Judge Scanlon, who noted the filed challenge but suggested
it had been filed improperly.3 Nevertheless, Judge Scanlon directed the
parties to contact the court about reassignment.
On March 3, 2021, petitioner’s counsel was informed by the trial court
in an e-mail that the case had been reassigned for all purposes to
Department 27, Judge Terri Mockler. On March 8, 2021, the parties
appeared before Judge Mockler, and petitioner’s counsel stated she wished to
file a challenge for cause pursuant to section 170.1 and that she was prepared
to serve the court personally. The trial court “surmise[d] that you’re trying to
recuse the entire bench because of the nature of the charges” and struck the
3 The record does not include a transcript of the March 3, 2021
proceeding before Judge Scanlon. Instead, petitioner submitted his counsel’s
declaration stating that Judge Scanlon suggested the challenge for cause was
improperly filed, but then indicated she would not handle the case and
directed the parties to contact the court about reassignment. The respondent
does not dispute petitioner’s recitation of what occurred at the March 3, 2021
proceeding. We conclude that the transcript of the March 3, 2021 proceeding
is not necessary to determine the issue before us regarding petitioner’s
March 8, 2021 challenge for cause against Judge Mockler.
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challenge as untimely because the case “has been handled by the Contra
Costa bench since its inception in May of 2019.” When petitioner’s counsel
asked, “Is the Court not allowing me to file the 170.1?” the court responded, “I
think it’s untimely.” Petitioner’s unfiled challenge for cause pursuant to
section 170.1 states “that facts exist such that an average person aware of
those facts might reasonably entertain a doubt that the Honorable Terri
Mockler would be able to be impartial towards [petitioner].” The challenge
states that Judge Mockler’s colleague Judge Devine is one of the named
victims and that the relationship between them creates the appearance of
bias.
DISCUSSION
The issue before us is whether the trial court erred when it refused to
allow petitioner to file a section 170.1 challenge and struck the challenge as
untimely. Petitioner asserts the trial court’s ruling should be reviewed for
abuse of discretion, citing Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th
1309, 1315 (“A trial court abuses its discretion when it erroneously denies as
untimely a motion to disqualify a judge pursuant to section 170.6”). Although
the California Supreme Court stated in People v. Alvarez (1996) 14 Cal.4th
155, 237, “As a general matter, an appellate court reviews a trial court’s
ruling on a recusal motion for abuse of discretion,” several Court of Appeal
decisions have applied a de novo standard of review when the facts are
undisputed. (E.g., Briggs v. Superior Court (2001) 87 Cal.App.4th 312, 319;
Sincavage v. Superior Court (1996) 42 Cal.App.4th 224, 230.) We need not
decide which standard of review applies here because we find the trial court
erred under either standard of review.
Section 170.1 sets forth the grounds for disqualifying a judge for cause,
including if “[a] person aware of the facts might reasonably entertain a doubt
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that the judge would be able to be impartial.” (§ 170.1, subd. (a)(6)(A)(iii).)
Section 170.3 outlines the applicable procedures for determining challenges
for cause. Section 170.3, subdivision (c)(1) states: “If a judge who should
disqualify himself or herself refuses or fails to do so, any party may file with
the clerk a written verified statement objecting to the hearing or trial before
the judge and setting forth the facts constituting the grounds for
disqualification of the judge. The statement shall be presented at the earliest
practicable opportunity after discovery of the facts constituting the ground for
disqualification. Copies of the statement shall be served on each party or his
or her attorney who has appeared and shall be personally served on the judge
alleged to be disqualified, or on his or her clerk, provided that the judge is
present in the courthouse or in chambers.”
Petitioner sought to disqualify Judge Mockler for cause at the first
proceeding before her, five days after he was notified that she had been
assigned to his case for all purposes. Judge Mockler interpreted the
challenge as an effort “to recuse the entire bench because of the nature of the
charges” and found the challenge untimely because the case “[had] been
handled by the Contra Costa bench since its inception in May of 2019.”
Although petitioner’s challenge was similar to his prior challenge to Judge
Scanlon, it sought recusal only of Judge Mockler, not of all judges of the
Contra Costa County Superior Court.4 Further, except for the Penal Code
section 1368 competency proceedings, all other prior hearings in petitioner’s
4 Petitioner argues his challenge for cause was not rendered untimely
on the basis that he had not previously moved to recuse the entire Contra
Costa County bench, and he further argues there is no procedural mechanism
to recuse an entire bench. As discussed ante, we find petitioner’s challenge
for cause was directed to Judge Mockler only and not to the entire bench.
Therefore, we address only the issue before us, i.e., the timeliness of
petitioner’s challenge to Judge Mockler for cause.
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case were heard by visiting judges who were not current members of the
Contra Costa County Superior Court bench. Competency proceedings are
special proceedings that are separate and distinct from the criminal action
and only involve a determination of the present mental capacity of a
defendant to stand trial. (Waldon v. Superior Court (1987) 196 Cal.App.3d
809, 813–814.) Indeed, the criminal proceedings were suspended pending the
competency hearings. Accordingly, the fact that the competency hearings
were heard by Contra Costa County Superior Court judges is not relevant to
the timeliness of the Code of Civil Procedure section 170.1 challenge to Judge
Mockler.
In Hollingsworth v. Superior Court (1987) 191 Cal.App.3d 22, 27, the
Court of Appeal interpreted section 170.3, subdivision (c)(1)’s requirement
that a challenge for cause “ ‘shall be presented at the earliest practicable
opportunity after discovery of the facts constituting the ground for
disqualification.’ ” The Court of Appeal reversed an order striking a
statement of disqualification as untimely where the record showed the
petitioners did not know the presiding judge had assigned their case to
herself until the parties were called into her chambers and the presiding
judge began to discuss their application for a temporary restraining order.
(Hollingsworth, at pp. 24–25.) At that point, petitioners’ counsel immediately
interrupted and asked the judge to recuse herself, then served her with a
motion to disqualify for cause. (Id. at p. 25.) The Court of Appeal found “it is
unreasonable, as well as impracticable, to require presentation of a statement
of disqualification until it is known which judge will hear the case.” (Id. at p.
28.) Similarly here, petitioner only learned that Judge Mockler had been
assigned to his case for all purposes on Wednesday, March 3, 2021; five days
later, on Monday, March 8, 2021, at the first appearance before Judge
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Mockler, petitioner’s counsel presented his section 170.1 challenge for cause.
We find the challenge for cause was timely.
The People declined to take a position regarding the petition for writ of
mandate. The respondent superior court filed a letter brief return arguing,
first, that no writ should issue because petitioner did not file or serve the
challenge for cause and therefore the issue is not ripe. We disagree. Given
the trial judge’s statements on the record that she was striking the challenge
as untimely even before it had been filed or served, petitioner was not
required to risk contempt of court by filing and personally serving the
challenge in defiance of the trial court’s ruling. Respondent further argues a
writ is not necessary for petitioner to have his challenge considered on the
merits because “once petitioner complies with section 170.3(c)(1) by filing the
statement of disqualification and by personally serving a copy of it on Judge
Mockler or upon the judge’s clerk when Judge Mockler is in the courthouse or
in chambers, Judge Mockler will file a verified answer pursuant to section
170.3(c)(3) and the matter will be determined in accordance with section
170.3(c)(5).” We view the respondent’s argument as an apparent concession
that the petitioner’s challenge was not untimely. Nonetheless, we find that
because the trial court erroneously refused to allow the petitioner to file the
170.1 challenge and struck the challenge as untimely, a writ shall issue.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior
court to vacate its order of March 8, 2021, striking petitioner’s challenge for
cause pursuant to Code of Civil Procedure section 170.1 as untimely.
Respondent shall permit petitioner to file his challenge for cause seeking to
disqualify Judge Mockler, and the parties shall proceed to address the
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challenge on the merits pursuant to Code of Civil Procedure section 170.3,
subdivision (c) and in accordance with this opinion.
Our decision is immediately final as to this court. (Cal. Rules of Court,
rule 8.490(b)(2)(A).) The previously issued stay is dissolved upon issuance of
the remittitur.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A162205/Ionescu v. Superior Court
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