Vallejo v. Superior Court of Santa Clara Cnty.

73 Cal.App.5th 132

288 Cal.Rptr.3d 150

Alicia VALLEJO, Petitioner,

v.The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent;

People of the State of California, Real Party in Interest.

H048233

Court of Appeal, Sixth District, California.

Filed December 23, 2021

Attorneys for Defendant/Petitioner Alicia Vallejo, By appointment under the Santa Clara County, Independent Defense Counsel Office, Kendall Dawson Wasley, Jamyrson L. Pittori

Attorneys for Real Party in Interest The People of the State of California, Jeffrey F. Rosen, District Attorney, County of Santa Clara, Kaci R. Lopez, Supervising Deputy District Attorney, County of Santa Clara

Grover, J.

During pretrial proceedings in a multi-defendant murder prosecution, Judge Paul O. Colin dismissed the single accessory-after-the-fact charge against petitioner in the interest of justice under Penal Code section 1385. The dismissal occurred on February 20, 2020. Judge Colin later recused himself at the request of the prosecution, and the case was assigned to Judge Linda R. Clark. Judge Clark found Judge Colin's recusal to have been a concession to retroactive disqualification, and on June 22, 2020, she granted the prosecution's motion to set aside as void all rulings of Judge Colin dating back to January 9, including the February 20 dismissal, thereby reinstating the accessory count against petitioner.

Petitioner seeks a writ of mandate from this court to vacate Judge Clark's June 22 order setting aside Judge Colin's February 20 order dismissing her case. Petitioner argues Judge Clark lacked authority to set aside the dismissal; Judge Colin had not conceded grounds for retroactive disqualification; nor had the prosecution established those grounds.

We begin by emphasizing the order we are called upon to review, namely Judge Clark's June 22 order. We recognize that the June 22 order is necessarily intertwined with the underlying February 20 order which is alleged to have been the product of bias on the part of Judge Colin. But ultimately, whether the February 20 dismissal was an appropriate exercise of discretion under Penal Code section 1385 is not before us, as the time to vest this court with jurisdiction to make that determination passed without a notice of appeal being filed. As in every case, the scope of our review is dictated by unforgiving jurisdictional confines and the parties' own procedural decisions.

As we will explain, Judge Colin's February 20 order dismissing the charge against petitioner was a final order terminating the trial court's authority over her case. To the extent the trial court has inherent equitable authority to reconsider a discretionary dismissal in a criminal case, that authority does not extend to the circumstances here. The People had a clear remedy to address the trial court's alleged bias or appearance of bias underlying the dismissal—an appeal under Penal Code section 1238, subdivision (a)(8). The People elected not to appeal, and have therefore forfeited their right to challenge the dismissal. We conclude that Judge Clark was without jurisdiction to set aside the dismissal, and further that Judge Clark's order was based on a flawed interpretation of Code of Civil Procedure section 170.3, subdivision (c). We will therefore direct the trial court to vacate its orders staying and later setting aside the February 20 order.

I. BACKGROUND

Cesar P. was shot and killed in December 2016. A year later, murder charges were filed against Angel Santacruz, Guillermo Cervantes, Jose Alcantar, and Joseph Duran. Petitioner Alicia Vallejo (Duran's mother) was charged as an accessory after the fact to murder. The charges were dismissed and refiled in 2018 against all codefendants except Santacruz, who became the People's witness and singled out codefendant Cervantes as the shooter. An amended information charged Cervantes, Alcantar, and Duran with conspiracy to commit murder ( Pen. Code, §§ 182, subd. (a)(1), 187 ; count 1), murder ( id. , § 187 ; count 2), and active participation in a criminal street gang (id. , § 186.22, subd. (a); count 3). Petitioner was charged as an accessory after the fact to murder. (Id. , § 32; count 4.)¹

We describe the chronology of proceedings in some detail because it is germane to our analysis. The case was assigned for trial to Judge Colin. Pre-trial motions began on December 17, 2019, with Santacruz's credibility featuring prominently. The hearings were unwieldly at times, and the court expressed frustration toward all parties. Judge Colin threatened the prosecutor with contempt on January 29, 2020 when the prosecutor took exception to a ruling regarding certain character evidence. On February 3, Judge Colin severed codefendant Alcantar's case as a lesser sanction to dismissal, after learning that the jail had been recording calls between Alcantar and his attorney. Judge Colin faulted the district attorney's office for not alerting the sheriff's office regarding the illegal recordings or attempting immediately to retrieve the recordings from the discovery material.

On February 18, Judge Colin expressed displeasure about the prosecutor speaking during a break with a testifying witness accompanied by a retired detective who had worked on the case and had been designated the prosecution's investigating officer for trial. Judge Colin ordered the prosecutor not to discuss anything of substance with a testifying witness, and ordered the investigating officer excluded from the courtroom during witness testimony. The judge later apologized and rescinded the investigator's exclusion after reviewing caselaw on the subject provided by defense counsel.

On February 19, Judge Colin addressed a defense motion to dismiss for destroying exculpatory evidence. He denied the motion, but ruled that officers had acted in bad faith by not downloading the contents of a cell phone consensually collected from a person of interest, because the phone might have contained evidence impeaching Santacruz and thereby exonerating Cervantes. Judge Colin indicated that a remedy short of dismissal would be appropriate and took the matter under submission.

On February 20, 2020, Judge Colin dismissed the single accessory charge against petitioner pursuant to Penal Code section 1385, and exonerated her bail. Petitioner had moved to dismiss the sole count against her based on discriminatory prosecution, and alternatively asked the court to dismiss the charge on its own motion under Penal Code section 1385. According to the People, petitioner understood that both Duran and Santacruz were involved in the murder; she aided Duran the day after the murder by driving him to the bus station in Oakland, buying him a bus ticket to Mexico, and giving him her cell phone; and she lied to law enforcement in August 2017 to protect Duran. The People argued the case involved multiple investigations generating thousands of pages of discovery; the charge was supported by evidence; and it should not be dismissed at the pretrial stage. Petitioner argued she was the only person charged as an accessory after the fact even though others had assisted the codefendants; she was the mother of two small children; she cared for her mother and uncle; she helped support her father who recently had a stroke; she lost her job as a nurse when she was arrested in December 2017; she had been unable to secure comparable work during the two years the case had been pending; she paid over $8,000 to secure bail; and she had no criminal history. Judge Colin ruled that the nature and circumstances of the offense, as well as petitioner's lack of criminal history, her background, character, and prospects favored a dismissal in furtherance of justice. Judge Colin denied the prosecutor's request to stay trial proceedings to allow the People time to seek an emergency stay in this court, and the People did not ask us to stay the proceedings.

On February 27, the People moved for Judge Colin to "disqualify himself from presiding over further proceedings" in the case on interrelated grounds: "Bias or prejudice toward a lawyer in the proceeding" ( Code Civ. Proc., § 170.1, subd. (a)(6)(B) ) and "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." (Id. , subd. (a)(6)(A)(iii).) The People argued that "evidence of bias against the People and lack of impartiality has come to light based on cumulative conduct of the court ... cumulating with statements and acts by the judge on February 20, 2020." The motion asked that Judge Colin recuse himself or, if he would not recuse himself, that the matter be set for a disqualification hearing. The motion cited examples of purported bias against the prosecution between January 9 and February 20, supported by sworn declarations and reporter's transcripts, such as making demeaning and sarcastic comments, failing to read the prosecution's briefs, not allowing prosecutors to be heard, ordering a prosecutor to leave the courtroom and not return, and forming judgments and making findings before hearing the prosecution's arguments. The motion was filed and served on Judge Colin in open court, and served on petitioner's attorney by email. Judge Colin stated that he needed time to review the motion, counted out 10 days as falling on Sunday March 8, and ordered the parties to return the following week on March 6. Judge Colin commented that the motion appeared timely. He noted that the motion included a number of assertions including "a controversial decision" from the previous week, that he had been out sick for two days, and that while it was "technically true that [he] could have been served yesterday," there was no timeliness concern in his view.

On March 6, Judge Colin recused himself by written order identifying the People's claims, denying actual bias, but acknowledging under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) the "appearance of bias that might result from [his] continuing to preside over the...