I concur in the judgment. After review, I have found no reversible error or other defect.
I agree with the majority as to the cognizability on appeal of defendant’s claim that the judge who sentenced him to death was not impartial, in violation of the due process clauses of the Fourteenth Amendment to the United States Constitution and article I, sections 7 and 15 of the California Constitution.
My reasons are as follows.
The Legislature has enacted a comprehensive statutory scheme, which is codified as chapter 3 of title 2 of part 1 of the Code of Civil Procedure, sections 170 through 170.8, entitled, Disqualifications of Judges. (See generally People v. Hull (1991) 1 Cal.4th 266, 269-275 [2 Cal.Rptr.2d 526, 820 P.2d 1036].) It defines certain statutory conditions under which a judge is declared “disqualified," i.e., “deprived of the power, right or privilege" to act (id. at p. 272). It establishes a procedure whereby a party may move to disqualify a judge, either for cause or peremptorily. In Code of Civil Procedure section 170.3, subdivision (d) (hereafter section 170.3(d)), it declares: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding.”
In section 170.3(d), the Legislature sought to preclude appellate review of the “determination, of the question of the disqualification of a judge,” i.e., the *341ruling on the underlying motion. Hence, it aimed to prevent an appellate court from passing on the question whether the judge under challenge was in fact “deprived of the power, right or privilege” to act (People v. Hull, supra, 1 Cal.4th at p. 272) under one or more of the statutory conditions. It did not even purport to bar a party from claiming on appeal that a judge who participated in his case was not impartial.
It follows that defendant is not precluded by section 170.3(d) from claiming that Judge J. William Mortland, who sentenced him to death, was not impartial. He is merely barred by that provision from attacking Judge (now Justice) Robert J. Timlin’s earlier denial of his motion to disqualify Judge Mortland—or, put otherwise, from arguing that Judge Mortland was in fact “deprived of the power, right or privilege” to act (People v. Hull, supra, 1 Cal.4th at p. 272) under one or more of the statutory conditions.
In my view, defendant does not establish his partiality claim against Judge Mortland. His failure, however, should not be taken to validate what transpired. Put simply, the judge’s ex parte communications with counsel and counsel’s investigator were altogether improper. They cannot, and must not, be condoned.
In conclusion, having found no reversible error or other defect, I concur in the judgment.
Panelli, J., concurred.
Appellant’s petition for a rehearing was denied February 2, 1994.