The opinion
Filed 12/23/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ALICIA VALLEJO, H048233
(Santa Clara County
Petitioner, Super. Ct. No. C1897470)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
PEOPLE OF THE STATE OF
CALIFORNIA,
Real Party in Interest.
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
2
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.
1
We grant petitioner’s request for judicial notice of the records and filings in the
underlying case No. C1897470. (Evid. Code, §§ 452, subd. (d), 459.)
3
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.
4
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 instant matter.” The case was transferred to the
supervising judge of the criminal division “for reassignment and further proceedings.”
5
Judge Colin announced his ruling in open court, in the presence of the prosecutor.
(Petitioner was not present, having been dismissed from the case.) The supervising judge
reassigned the case on March 9, and the case was again reassigned on April 9 to Judge
Clark after a codefendant made a peremptory challenge to the initial reassignment.
On March 12, the People moved under Code of Civil Procedure section 170.3,
subdivision (b)(4) to set aside all rulings of Judge Colin as of January 9, 2020 due to his
recusal, and served petitioner’s attorney with the motion. In addition to the order
dismissing the accessory charge against petitioner, the motion encompassed the order
severing Alcantar’s case as well as several in limine rulings. The People argued that
Judge Colin’s acknowledgment of the appearance of bias moving forward was a
concession of the appearance of bias in the past, which in turn constituted good cause to
vacate all of his January 9 and later rulings as void. The People also argued they had
established actual bias as shown by the disqualification motion.
On April 9, Judge Clark emailed counsel for all parties and petitioner requesting a
meeting to discuss logistics. The prosecutor alerted Judge Clark to the pending motion to
set aside Judge Colin’s rulings. The prosecutor explained that the People had not filed a
notice of appeal from the February 20 dismissal “because there’s an argument that
jurisdiction would leave the Superior Court … at that point.” He asked that the motion
be heard and decided before April 20, the last day to appeal the dismissal order, to avoid
having to litigate whether the court’s consideration of the motion—“which implicates the
1385 decision”—makes that decision “not final.” (The prosecutor also acknowledged the
court’s scheduling challenges in light of the global pandemic.) Petitioner joined a
teleconference with the parties and Judge Clark on April 15, and on April 16 Judge Clark
issued an order staying Judge Colin’s dismissal until the motion to set aside could be
fully briefed and argued. Petitioner objected to the stay on jurisdictional grounds.
The People filed a further motion to set aside Judge Colin’s rulings in light of
Judge Clark’s stated preliminary view that Judge Colin, by not filing a verified answer
6
under Code of Civil Procedure section 170.3, subdivision (c)(3), was deemed to have
consented to disqualification and to have conceded the allegations raised in the
disqualification motion, rendering him disqualified as of January 9, the date of the
earliest conduct alleged in the People’s motion. The People agreed with Judge Clark’s
indicated position as an alternative to the original basis for relief.
Petitioner opposed the motion as to Judge Colin’s February 20 dismissal, and
joined in the defendants’ opposition. Petitioner argued the court lacked jurisdiction to
vacate the dismissal; the People had not sought or obtained an order disqualifying Judge
Colin as of January 9; and the dismissal order was not otherwise void under Urias v.
Harris Farms (1991) 234 Cal.App.3d 415 because the People had failed to timely raise
disqualification or allege facts clearly showing Judge Colin was disqualified to hear the
case.
On June 22, Judge Clark set aside as void all orders issued by Judge Colin on and
after January 9, including the February 20 order dismissing the sole count against
petitioner. Ruling from the bench, Judge Clark noted that under Code of Civil Procedure
section 170.3, subdivision (b)(4), “absent good cause, the judge who replaces a
disqualified judge shall not set aside the rulings of the previous judge that were made
prior to the disqualification,” which rule makes it “incumbent on this Court to determine
precisely when the disqualification existed.” Judge Clark found the People’s motion to
disqualify timely and legally sufficient (as had Judge Colin by not striking the filing).
Judge Clark found that Judge Colin’s recusal order was insufficient to deny bias under
the statutory disqualification scheme because it was “neither verified nor executed under
penalty of perjury.” In Judge Clark’s view, by denying bias Judge Colin sought to
contest disqualification and was therefore required to file an answer admitting or denying
the allegations, and because he failed to do so, he was deemed to have consented to the
disqualification and to have conceded the allegations of bias which dated back to
January 9. Judge Clark concluded the allegations were deemed true for purposes of
7
determining when grounds for disqualification existed. Petitioner signed an agreement to
appear, and Judge Clark issued a written order releasing her on her own recognizance.
Petitioner seeks a writ of mandate to vacate Judge Clark’s orders staying and
setting aside Judge Colin’s dismissal.2 We have stayed her prosecution in the trial court,
and issued an order to show cause.
II. DISCUSSION
A. THE TRIAL COURT LACKED AUTHORITY TO VOID THE FEBRUARY 20
DISMISSAL ORDER
Petitioner asserts Judge Clark lacked authority to stay and later set aside Judge
Colin’s dismissal because the trial court lost subject matter jurisdiction over petitioner’s
case when the sole charge against her was dismissed. “In its fundamental sense,
‘jurisdiction’ refers to a court’s power over persons and subject matter.” (People v.
Mower (2002) 28 Cal.4th 457, 474, fn. 6.) “A lack of jurisdiction in its fundamental or
strict sense results in ‘ “an entire absence of power to hear or determine the case, an
absence of authority over the subject matter or the parties.” ’ ” (People v. Lara (2010)
48 Cal.4th 216, 224.) Thus, the legal question subject to our independent review is
whether the superior court lost its authority over the action against petitioner when it
dismissed the case against her.
1. Petitioner’s Authorities
Petitioner relies on Smith v. Superior Court (1981) 115 Cal.App.3d 285 (Smith),
Conservatorship of Christopher B. (2015) 240 Cal.App.4th 809 (Christopher B.), and
People v. Hampton (2019) 41 Cal.App.5th 840 (Hampton). We examine each in turn.
2
Codefendant Alcantar also sought review of Judge Clark’s June 22 order voiding
Judge Colin’s order severing Alcantar’s case for trial. His writ petition was denied
because Duran resolved his charges by plea and the remaining codefendants were tried
while Alcantar’s petition was under review, effectively rendering his case severed and his
petition moot.
8
Smith v. Superior Court
Smith addressed whether a trial court has authority to reconsider and vacate an
order dismissing a prosecution based on the allegation that a mistake had occurred and
that new facts would alter the court’s decision. (Smith, supra, 115 Cal.App.3d at p. 287.)
The trial court in Smith granted the prosecutor’s motion to dismiss criminal charges after
the court of appeal held certain evidence inadmissible based on an illegal warrantless
search. (Id. at pp. 287–288.) The prosecutor was aware that the California Supreme
Court had denied review and a remittitur had issued in the case, and the defendant’s
attorney stated his understanding that no appellate matters were pending. (Ibid.) Upon
learning that the Attorney General’s office had filed an application for stay in the United
States Supreme Court pending the filing of a petition for writ of certiorari, the prosecutor
moved successfully to vacate the dismissal and reinstate the charges. (Id. at p. 288.)
The court in Smith rejected the argument that in vacating the dismissal the trial
court acted under Code of Civil Procedure sections 473 (relief from judgment taken by
mistake, inadvertence, surprise, or excusable neglect), 1008 (reconsideration of order),
and 128 (providing every court with certain powers, including power “[t]o amend and
control its … orders so as to make them conform to law and justice”). (Smith, supra,
115 Cal.App.3d at p. 291.) Those statutes did not apply to criminal proceedings because
the California Supreme Court in Gonzales v. Superior Court (1935) 3 Cal.2d 260 held
that section 473 does not apply to criminal actions, and the Gonzales reasoning—that
only those parts of the Code of Civil Procedure expressly made applicable to criminal
actions are incorporated into the Penal Code—precluded application of sections 1008 and
128. (Smith, at p. 291.) The Smith court also rejected the argument that the trial court
had equitable power to vacate the dismissal order, observing, “Even granting that
criminal courts have inherent powers which they may exercise in various contexts, a large
step must be taken before concluding that a criminal judgment or order dismissing a
9
criminal prosecution can be disturbed because of a mistake in the presentation of
operative facts.” (Id. at pp. 292–293.)
The Smith court found In re Candelario (1970) 3 Cal.3d 702 (Candelario)
instructive. (Smith, supra, 115 Cal.App.3d at pp. 291–292.) The petitioner in Candelario
was convicted of a drug offense and admitted a prior felony conviction. (Candelario, at
p. 704.) The trial court sentenced him without making a finding on the prior conviction,
and several weeks later filed an amended abstract of judgment reflecting a finding on the
prior. (Id. at pp. 704, 707.) On habeas review, the California Supreme Court rejected the
Attorney General’s contention that the amended abstract served as a clerical correction.
Concluding that the amendment was in excess of the trial court’s jurisdiction and
ineffective for any purpose, the Candelario court noted, “[a]n amendment that
substantially modifies the original judgment or materially alters the rights of the parties[]
may not be made by the court under its authority to correct clerical error[s], [] unless the
record clearly demonstrated that the error was not the result of the exercise of judicial
discretion.” (Id. at pp. 705, 708.) The Smith court reasoned that the tenor of the
Candelario decision suggests a final judgment or dispositive order performed in a
criminal defendant’s favor is immune from trial court attack. (Smith, at pp. 292–293.)
The court held “that at least where no actual fraud has been perpetrated upon the court, a
criminal court had no authority to vacate a dismissal entered deliberately but upon an
erroneous factual basis.” (Id. at p. 287.) (We note the contrast to acts in excess of the
court’s jurisdiction such as the imposition of an unlawful sentence, where “[s]ettled
authority permits a prosecution attack upon such a sentence.” (Id. at p. 293, fn. 4, citing
Wilson v. Superior Court (1980) 108 Cal.App.3d 816.))
Conservatorship of Christopher B.
In Christopher B., the appellate court addressed the trial court’s authority to
reinstate an indictment dismissed by mistake, in the context of reviewing a probate court
order establishing a conservatorship over an incompetent criminal defendant.
10
(Christopher B., supra, 240 Cal.App.4th at pp. 816–818.) A pending indictment or
information against the incompetent defendant was required to establish the
conservatorship. (Welf. & Inst. Code, former § 5008, subd. (h)(1)(B)(ii).) At a status
conference and in light of the conservatorship proceedings, the criminal court dismissed
the “charges” in a “case” against the incompetent defendant, which included a stayed
complaint and later-filed indictment under the same case number, on the oral motion of
the prosecutor who was unaware of the indictment. (Christopher B., at pp. 813–814.)
Alerted to the mistake, a week later the criminal court issued an order stating that “the
‘Complaint … is dismissed. The Indictment is not dismissed.’ ” (Id. at p. 814)
On appeal from the conservatorship order, the Christopher B. court addressed the
reach of the criminal court’s dismissal. Citing In re Candelario, it held that the trial court
lacked jurisdiction to correct its error because the error was “in rendering a deliberate
‘exercise of judicial discretion.’ ” (Christopher B., supra, 240 Cal.App.4th at p. 816.) It
did not matter that “a court or moving party acted under a mistake as long as the court
‘was performing the act it intended to perform.’ ” (Ibid.) The trial court’s second order
was therefore void and subject to collateral challenge in the conservatorship proceeding.
(Id. at p. 817.)
People v. Hampton
Most recently, the court in Hampton addressed the trial court’s authority to vacate
a criminal dismissal as part of a global plea agreement encompassing the dismissed case
and probation violations. (Hampton, supra, 41 Cal.App.5th at p. 843.) The trial court
accepted the plea agreement, vacated the dismissal, and rejected a later motion by the
defendant to withdraw the plea based on lack of authority to reinstate the criminal case.
(Id. at pp. 844–845.) The defendant appealed from a prison commitment after violating
probation, arguing that the judgment and sentence were void because the trial court had
lost subject matter jurisdiction when it originally dismissed the case and thus had no
authority to vacate that dismissal. (Id. at p. 845.)
11
The appellate court found “no constitutional or statutory provision that authorizes
the parties in a criminal action to stipulate to the trial court vacating its earlier dismissal
of the entire action to restore jurisdiction to implement a plea bargain.” (Hampton,
supra, 41 Cal.App.5th at p. 846.) Citing Christopher B. and Smith, the Hampton court
observed that “a dismissal of an entire criminal action is a final order that leaves a court
without jurisdiction to reinstate the case.” (Ibid.) But it also recognized that under
“broad inherent powers” to carry out judicial duties, “a court may be authorized to vacate
a final judgment of dismissal that was procured by extrinsic fraud.” (Hampton, at p. 847,
citing Marler v. Municipal Court (1980) 110 Cal.App.3d 155, 162.) In Marler, the
appellate court instructed the superior court to issue a writ of prohibition directing the
municipal court to dismiss reinstated misdemeanor charges that had been previously
dismissed under Penal Code section 1385. (Marler, at pp. 159, 163.) The Marler court
noted that a final judgment of dismissal “may be subject to the inherent power of the
court to vacate where procured by fraud,” but found no fraud had been shown in that
case. (Id. at p. 162.)
In reversing the judgment, the court in Hampton explained: “[T]he dismissal at
the time operated as a final judgment. The prosecution intended it to be a dismissal, as it
announced it would file a new complaint. The trial court acted upon it as a dismissal with
jurisdictional effect, as it released defendant from custody for purposes of the case.
Everyone left the courtroom that day fully understanding the case had been dismissed and
the court had lost subject matter jurisdiction over it. No California authority authorizes
the parties in such a situation to reconfirm jurisdiction on a trial court by stipulation to
implement a plea bargain.” (Hampton, supra, 41 Cal.App.5th at p. 848.) The Hampton
court distinguished People v. Nesbitt (2010) 191 Cal.App.4th 227, which involved the
trial court’s inherent authority to reconsider an interim, mid-trial order dismissing two
counts of a six-count complaint on statute of limitations grounds. (Hampton, at p. 848.)
The Nesbitt dismissals were not based on insufficient evidence, no final judgment had
12
been entered from which an appeal could have been taken, and presumably the
prosecution could have refiled the dismissed counts. (Nesbitt, at p. 238.)
2. The People’s Authorities
The People argue petitioner’s authorities do not address the trial court’s authority
to vacate an order issued by a disqualified judge. Relying primarily on Jackson v.
Superior Court (2010) 189 Cal.App.4th 1051 (Jackson), Christie v. City of El Centro
(2006) 135 Cal.App.4th 767 (Christie), Cadenasso v. Bank of Italy (1932) 214 Cal. 562
(Cadenasso), and Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415 (Urias), the
People contend that the trial court retained jurisdiction over Judge Colin’s dismissal until
the time to file an appeal from that order had passed. Here again, we examine the posture
of each case in some detail.
Jackson v. Superior Court
In Jackson a different panel of this court recognized the trial court’s inherent
power to reconsider and vacate an order granting a petition for a writ of habeas corpus.
(Jackson, supra, 189 Cal.App.4th at pp. 1056–1057.) The panel rejected the argument
that the grant of habeas corpus constituted a final judgment divesting the trial court of
jurisdiction to hear a motion for reconsideration before the 60-day time to appeal had
passed. (Id. at p. 1062.) The court concluded that a trial court retains the inherent
jurisdiction to reconsider an order granting habeas relief before the taking of an appeal
because the order is not “binding” until the time for appeal has passed. (Id. at p. 1064.)
A trial court would, however, lose jurisdiction to reconsider its ruling when the order
became final and binding, or when a notice of appeal was filed. (Id. at pp. 1067–1068.)
The court in Jackson viewed the motion to reconsider as tantamount to a
nonstatutory motion to vacate the judgment. (Jackson, supra, 189 Cal.App.4th at
p. 1067.) The court cited to People v. Castello (1998) 65 Cal.App.4th 1242 (Castello) for
the inherent power to reconsider rulings (in that case an interim ruling on the validity of a
prior strike). (Jackson, at p. 1067.) Castello in turn quoted from In re Jessup (1889)
13
81 Cal. 408 and Metropolitan Water Dist. v. Adams (1942) 19 Cal.2d 463 that “ ‘[T]he
power to grant rehearings is inherent,–is an essential ingredient of jurisdiction, and ends
only with the loss of jurisdiction.’ ” (Castello, at p. 1248.) The Supreme Court in those
cases was addressing its own power to grant rehearing, which terminated upon remittitur.
(In re Jessup, at p. 468; Metropolitan Water Dist., at p. 469.)
The Jackson court cited People v. Wadkins (1965) 63 Cal.2d 110 as an example of
trial court postjudgment jurisdiction in a criminal proceeding. (Jackson, supra,
189 Cal.App.4th at p. 1066.) The defendant in Wadkins sought a writ of coram nobis to
allow him to withdraw his guilty plea and vacate his conviction based on the denial of an
unkept promise. (Wadkins, at p. 111.) The appellate court recognized that “although a
motion to change a plea of guilty must ordinarily be made before judgment is pronounced
(Pen. Code, § 1018), both motions to vacate the judgment and petitions in the nature of
coram nobis may be addressed to the trial court after judgment, if there has been no
affirmance on appeal (Pen. Code, § 1265).” (Id. at pp. 112–113.) The relief is grounded
in a criminal defendant’s right to due process. (Id. at p. 114.)
Christie v. City of El Centro
While his motion for a new trial was pending following a nonsuit and dismissal,
the plaintiff in Christie challenged the trial judge for cause. (Christie, supra,
135 Cal.App.4th at p. 773.) The plaintiff asserted that the judge was disqualified at the
time of nonsuit based on the judge’s conversations about the case (specifically about
possible nonsuit) with a judge who had previously been disqualified from the case.
(Ibid.) An independent judge determined the trial judge was disqualified based on those
communications, and a replacement judge granted the plaintiff’s new trial motion based
on irregularity in the proceedings. (Id. at pp. 774–775.) The city appealed the order
granting a new trial; it did not petition for a writ of mandate to challenge the
disqualification. (Id. at p. 775.)
14
In upholding the order granting a new trial, the court in Christie concluded that
because the trial judge was disqualified at the time he granted the nonsuit, that ruling
“was null and void and must be vacated regardless of a showing of prejudice.” (Christie,
supra, 135 Cal.App.4th at p. 776.) In adhering to the view that the judgment was void
(rather than voidable), the Christie court described voidable orders as “meaning they only
must be vacated if the issue is properly raised by a party in the trial court, because the
superior court itself, if not the disqualified judge, retains fundamental subject matter
jurisdiction.” (Id. at p. 779; see also People v. Lara, supra, 48 Cal.4th at p. 225 [a
voidable judgment is an act in excess of jurisdiction, and as such, it “is valid until set
aside, and parties may be precluded from setting it aside by such things as waiver,
estoppel, or the passage of time”].) Christie also noted Witkin’s view that a disqualified
judge’s lack of authority to hear and determine a cause “ ‘should not be considered a lack
of jurisdiction of the subject matter,’ ” as “ ‘[a]nother judge of the same court, or a judge
assigned from another court, may try the case.’ ” (Christie, at p. 780, citing 2 Witkin,
Cal. Procedure (4th ed. 1996) Courts, § 93, p. 131; accord, Rossco Holdings Inc. v. Bank
of America (2007) 149 Cal.App.4th 1353, 1359–1363 [trial court retains subject matter
jurisdiction over pending matter post disqualification].)
Cadenasso v. Bank of Italy
In Cadenasso, the Supreme Court addressed an aggrieved party’s effort to vacate a
civil judgment based on the trial judge’s disqualification (as a shareholder in the bank
which had prevailed in the trial court and on appeal), where the aggrieved party became
aware of the grounds for disqualification on the same day the Supreme Court affirmed the
judgment. (Cadenasso, supra, 214 Cal. at p. 564.) In the aggrieved party’s appeal from
an order sustaining a demurrer to an action to vacate the judgment, the Supreme Court
noted that the aggrieved party had acted with due diligence in seeking to have the
judgment vacated based on the trial judge’s disqualification. (Id. at p. 567.) The
Supreme Court characterized the judgment as void, the judge as acting without
15
jurisdiction, and the judge’s act a nullity. (Id. at pp. 567–568.) The court also noted that
the action seeking to vacate the judgment was brought in equity and commenced before
the challenged judgment had become final. (Id. at p. 569; Bank of Italy v. E.N.
Cadenasso (1929) 206 Cal. 436, 438 [“Courts of equity offer plain, speedy and adequate
relief against the evil effects that may flow from void judgments”]; see also Olivera v.
Grace (1942) 19 Cal.2d 570, 575 [“Typical of the situations in which equity has
interfered with final judgments are the cases where the lack of a fair adversary hearing in
the original action is attributable to matters outside the issues adjudicated therein which
prevented one party from presenting his case to the court, as for example, where there is
extrinsic fraud”].)
Urias v. Harris Farms
Upon learning that the judge who granted a defense motion for summary judgment
had a disqualifying conflict of interest, the plaintiff in Urias filed a statement of
disqualification requesting that the judge be disqualified and the summary judgment
ruling be voided. (Urias, supra, 234 Cal.App.3d 415 at p. 419.) The challenged judge
did not respond to the disqualification statement, and a superior court judge appointed by
the Judicial Council rejected the argument that the statement was untimely and
determined the challenged judge was disqualified by operation of Code of Civil
Procedure section 170.3, subdivision (c)(4) (“A judge who fails to file a consent or
answer … shall be deemed to have consented to his or her disqualification”). (Urias, at
p. 419.) The appointed judge did not address the plaintiff’s request to void the adverse
judgment. The plaintiff appealed from that judgment, while the defendant separately
petitioned for a writ of mandate directing that the disqualification order be vacated.
(Id. at p. 420.)
Denying the writ petition, the court in Urias concluded that the disqualification
statement had been properly filed, and because the challenged judge neither struck the
statement nor filed an answer contesting the disqualification, he was properly deemed to
16
have consented to the disqualification regardless of the sufficiency of the statement.
(Urias, supra, 234 Cal.App.3d at pp. 421–422.)
In determining whether the judgment on appeal required reversal in light of the
disqualification, the Urias court explained that Code of Civil Procedure section 170.3,
subdivision (b)(4) (authorizing a replacement judge for good cause to set aside rulings of
a disqualified judge made “before the judge has completed judicial action in a
proceeding”) did not control because the judge was deemed disqualified after he granted
the motion for summary judgment and entered judgment. (Urias, supra, 234 Cal.App.3d
at p. 423.) The appellate court explained that the actions of a disqualified judge are
voidable if properly raised by an interested party, and a party seeking to declare a
judgment void on the ground the judge was disqualified “must allege and prove facts
which clearly show that such disqualification existed.” (Id. at p. 424.) The plaintiff had
“raised the judge’s disqualification in a timely manner” one week after judgment was
entered, along with a motion to set aside the summary judgment. (Id. at p. 426.) Because
the challenged judge was deemed to have consented to disqualification under Code of
Civil Procedure section 170.3, subdivision (c)(4), the merits of the plaintiff’s
disqualification statement were not addressed in the disqualification proceeding. Thus,
the appellate court in Urias determined the sufficiency of the disqualification statement in
the first instance, viewing the allegations contained in the statement as true. The
plaintiff’s statement (on information and belief) that the challenged judge, who was
newly appointed and whose former law firm had represented the defendant “ ‘for the last
10 years’ ” was sufficient as a matter of law to establish the judge’s disqualification from
the inception of the case. (Urias, at p. 426.)
3. Analysis
Petitioner’s authorities demonstrate that a trial court loses jurisdiction over a
criminal matter when a discretionary dispositive order is issued in a defendant’s favor.
Judge Clark therefore lacked the authority to void or even to stay Judge Colin’s
17
dismissal. (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489 [“Since
the trial court had no jurisdiction to do anything after the new trial motion was deemed
denied by operation of law” there were no proceedings to stay].) A trial court’s inherent
equitable authority to consider a nonstatutory postjudgment motion in criminal cases has
been recognized in two circumstances: to remedy extrinsic fraud and to protect a
defendant’s constitutional right to due process. Neither of those circumstances is present
here.
The People’s authorities do not convince us that the trial court retained jurisdiction
over the accessory charge against petitioner after it was dismissed by Judge Colin in the
exercise of his discretion. Jackson is distinguishable in that it involves a habeas corpus
proceeding which is equitable in nature and designed to overturn a presumptively valid
judgment. (In re Barnett (2003) 31 Cal.4th 466, 478, fn. 10; People v. Duvall (1995)
9 Cal.4th 464, 482 [The procedures that govern habeas corpus are intended “to provide a
framework in which a court can discover the truth and do justice in timely fashion”]; In
re Harris (1993) 5 Cal.4th 813, 851 [Justice and equity are considered when crafting a
remedy to a meritorious petition].) It makes sense for a court to exercise inherent
equitable powers to reconsider an order granting habeas relief. Jackson is also
distinguishable in that the order there was reconsidered before the time to appeal had
passed. Even if Judge Clark had authority to issue a stay within the 60-day period for
filing a notice of appeal, a stay would not have tolled the time to appeal, which ended on
April 20. “The requirements as to the time for filing notices of appeal are mandatory and
jurisdictional in both civil and criminal actions.” (People v. Lewis (1933) 219 Cal.410,
413.) California Rules of Court, rule 8.308(a) provides: “Except as provided in [subpart]
(b) or as otherwise provided by law, a notice of appeal … must be filed within 60 days
after the rendition of the judgment or the making of the order being appealed. Except as
provided in rule 8.66, no court may extend the time to file a notice of appeal.” Neither
subpart (b) (pertaining to cross-appeals) nor rule 8.66 (pertaining to emergency tolling by
18
order of the Judicial Council) applies here. The rules of court “ ‘have the force of statute
to the extent that they are not inconsistent with legislative enactments and constitutional
provisions.’ ” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011.)
Cadenasso also involved equitable relief in a civil matter. The party seeking to
vacate the judgment in Cadenasso acted immediately upon learning of the trial judge’s
undisputed disqualification and while the Supreme Court retained jurisdiction over the
case. In contrast here, the trial court had lost its authority over petitioner by the time the
People asserted grounds for Judge Colin’s disqualification on February 27. The
prosecution against petitioner is not equitable in nature. Nor are the People seeking to
remedy an interim order (as in Castillo) or a due process violation (as in Wadkin).
The discussion in Christie regarding voidable orders does not support the People’s
view that the trial court retained subject matter jurisdiction over petitioner’s case post
dismissal. Trial courts clearly have subject matter jurisdiction over nonfinal matters, as
was the case in Christie where the trial judge’s disqualification was raised and decided
while a motion for new trial was under submission, and a new trial was granted based on
that disqualification. Similarly, the trial court here had authority to act after Judge
Colin’s recusal in the ongoing criminal proceedings against defendants Cervantes,
Alcantar, and Duran, but not in petitioner’s case which had been dismissed and could not
be refiled.
Finally, Urias is distinguishable in that the plaintiff in Urias appealed from the
adverse judgment, vesting the appellate court with jurisdiction to reverse the judgment in
light of the postjudgment disqualification. That jurisdiction is absent here. Because the
People elected not to appeal Judge Colin’s order dismissing the criminal charge against
petitioner, the remedy in Urias—reversing the challenged judgment—is not available
here. We have no jurisdiction to disturb that order; our review is limited to whether
19
Judge Clark had authority to set aside as void Judge Colin’s dismissal order. We have
concluded she did not.3
It is important to note that the loss of trial court jurisdiction under these
circumstances did not leave the People without a remedy. A direct appeal was available
to address the propriety of the February 20 dismissal. The record reflects that the People
considered both that remedy and the possibility of seeking a writ to enjoin trial
proceedings pending review. Had an appeal been filed, we would have reviewed Judge
Colin’s dismissal for abuse of discretion. Although reversal under that standard is rare, it
is not non-existent and should not in itself be viewed as foreclosing appellate relief. As
to that calculation, we acknowledge that the People’s February 27 motion which laid out
the case for Judge Colin’s disqualification post-dated the February 20 dismissal order and
therefore would not have been included in the appellate record. But the People’s motion
was drawn entirely from record evidence that pre-dated the February 20 order. Thus, bias
influencing the February 20 order could have been demonstrated in an appeal of that
order without requiring extra-record evidence. The People also could have pursued
disqualification before Judge Colin heard petitioner’s motion to dismiss had they
believed he was unfit to render that ruling. Because the People made a strategic choice to
forgo those remedies, Judge Colin’s conduct is beyond the scope of our review.
Although whether the February 20 dismissal was the product of bias and therefore
an abuse of discretion is not an issue we have been properly asked to decide, the record
we have been presented to review compels us to observe it is replete with comments and
conduct from the bench toward the prosecutor’s office that do not comport with the
standards of impartiality and decorum established by Canon 3(B) of the California Code
3
Urias demonstrates that Judge Colin’s dismissal order did not come within Judge
Clark’s authority to set aside rulings under Code of Civil Procedure section 170.3,
subdivision (b)(4) (although that provision would apply to nondispositive rulings by
Judge Colin). (Urias, supra, 234 Cal.App.3d at pp. 419, 423.)
20
of Judicial Ethics. It appears from his self-examination for possible embroilment on
February 18 and ultimately his self-recusal on March 6 that Judge Colin himself may
have recognized as much. We fully acknowledge the demands and stresses of presiding
over a lengthy trial. But we are troubled by a record – even occurring outside the
presence of a jury – containing repeated threats of direct contempt, belittling comments
toward counsel, and the appearance of less than full opportunities to be heard.
B. JUDGE CLARK MISINTERPRETED CODE OF CIVIL PROCEDURE SECTION 170.3,
SUBDIVISION (C) IN RULING THAT JUDGE COLIN HAD CONCEDED ACTUAL BIAS
To provide guidance to trial courts, we address whether Judge Clark correctly
applied Code of Civil Procedure section 170.3, subdivision (c) in interpreting Judge
Colin’s recusal order, as urged by the People. (Further statutory references are to this
code.)
Under section 170.3, a judge may determine himself or herself to be disqualified.
(§ 170.3, subd. (a)(1); grounds for disqualification are set forth in section 170.1.) In the
event a judge who should do so refuses or fails to, any party may file in the trial court a
verified statement objecting to the proceeding before that judge, and setting forth facts
constituting the grounds for disqualifying the judge. (Id., § 170.3, subd. (c)(1).) Upon
receipt of a party’s objections, a challenged judge may do one of three things: request
another judge agreed upon by the parties to sit in his or her place without conceding
disqualification (id., subd. (c)(2)); consent to disqualification and so notify the presiding
judge (id., subd. (c)(3)); or “file a written verified answer admitting or denying any or all
of the allegations contained in the party’s statement and setting forth additional facts
material or relevant to the question of disqualification.” (Ibid.). In the event the
challenged judge “fails to file a consent or answer,” he or she “shall be deemed to have
consented to his or her disqualification” and a replacement will be appointed. (Id.,
subd. (c)(4).)
21
Here, the People sought Judge ColFpostin’s prospective recusal on two
disqualifying grounds: section 170.1, subdivision (a)(6)(B) (“Bias or prejudice toward a
lawyer in the proceeding”) and subdivision (a)(6)(A)(iii) (“For any reason [¶] [a] person
aware of the facts might reasonably entertain a doubt that the judge would be able to be
impartial”). Judge Colin consented under subdivision (c)(3) of section 170.3 to one of
those grounds by issuing an order recusing himself, and notifying the supervising judge
of the criminal division of the recusal. The order cited to section 170.1, subdivision
(a)(6)(A)(iii) and acknowledged “any appearance of bias that might result from my
continuing to preside over the instant matter.” (Emphasis added.) Subdivision (c)(3) of
section 170.3 does not require a judge who consents to disqualification to concede every
alleged ground for disqualification. Nor does the provision state that by consenting to
disqualification based on cumulative conduct allegedly establishing bias or an appearance
of bias, a judge concedes that each alleged act standing alone constitutes actual or
perceived bias. Judge Clark misapplied subdivision (c)(3) of section 170.3, deeming
Judge Colin’s recusal a “fail[ure] to file a consent or answer” under subdivision (c)(4),
and finding that Judge Colin conceded actual bias as of January 9. (Cf. Urias, supra, 234
Cal.App.3d at pp. 425–426 [disqualification allegations deemed true where challenged
judge failed to file a consent or answer under subdivision (c)(3)]; Hayward v. Superior
Court (2016) 2 Cal.App.5th 10, 36–37 [same].) Judge Colin’s consent under subdivision
(c)(3) was a concession only to the prospective appearance of bias based on cumulative
conduct. Had Judge Colin been asked to recuse himself retroactively, he may have
elected to file a verified answer under subdivision (c)(3) denying some or all of the
allegations of actual or perceived bias.
III. DISPOSITION
Let a peremptory writ of mandate issue directing respondent court (1) to vacate its
June 22, 2020 order setting aside the February 20, 2020 order dismissing the criminal
case against petitioner, and (2) to vacate the stay issued on April 16, 2020. (Our
22
disposition neither reaches nor requires respondent court to address any other pretrial
order set aside by its order of June 22, 2020.) Respondent court is also directed to vacate
its June 22, 2020 order authorizing petitioner’s release on her own recognizance, and to
discharge petitioner from the stated terms of such release.
23
____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H048233 - Vallejo v. Superior Court
Trial Court: Santa Clara County Superior Court
Case No.: C1897470
Trial Judge: Hon. Linda R. Clark
Attorneys for Defendant/Petitioner Kendall Dawson Wasley
Alicia Vallejo Jamyrson L. Pittori
By appointment under the Santa Clara
County, Independent Defense
Counsel Office
Attorneys for Real Party in Interest Jeffrey F. Rosen
The People of the State of California District Attorney,
County of Santa Clara
Kaci R. Lopez
Supervising Deputy District Attorney
County of Santa Clara