COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 27, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ORIENTHAL D. LIGGINS, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Bernardino County, Brian S. McCarville, Judge. Judgment modified and affirmed as modified. (Super. Ct. No. FSB047546)
The opinion of the court was delivered by: McCONNELL, P. J.
P. v. Liggins
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted Orienthal D. Liggins of first degree murder, and found true allegations he personally used a knife during the commission of the crime. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).)*fn1 The trial court found true allegations he had two prior strike convictions, two prior serious felony convictions, and one prior prison conviction. (§§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12, subd. (b)(1).) The trial court sentenced him to 75 years to life in prison for the first degree murder conviction, plus one year for the weapon use enhancement, plus five years for each of the prior serious felony convictions, plus one year for the prior prison conviction.
Liggins appeals, contending the trial court abused its discretion when it denied as untimely his motion to disqualify the trial judge. In addition, he contends there is insufficient evidence to support the trial court's finding he suffered a prior strike conviction in Texas. He also contends the trial court should have stricken, rather than imposed, a sentence for the prior prison conviction finding because it was based on the same offense as one of the serious felony conviction findings.
The People concede the latter issue. We order the one-year sentence for the prior prison conviction stricken and the abstract of judgment corrected accordingly. In all other respects, we affirm the judgment.
In November 2008 the trial court assigned this case to the Honorable Brian McCarville for all purposes. Five days later, Liggins, who was representing himself, filed a motion to disqualify Judge McCarville under Code of Civil Procedure section 170.6. Judge McCarville denied the motion, finding it untimely.
Liggins contends the trial court erred in denying the motion because it was, in fact, timely. He further contends the error rendered the trial result invalid and we must, therefore, reverse his conviction. The People contend Liggins's claim is not cognizable on appeal as Liggins's exclusive remedy for the erroneous denial was to file a petition for writ of mandate. We agree.
Code of Civil Procedure section 170.6 allows any party or attorney to a civil or criminal action to move for disqualification of the assigned judge by asserting under oath the judge is prejudiced against the party or attorney, or the party's or attorney's interest, such that the party or attorney does not believe he or she will receive an impartial trial. (Code Civ. Proc., § 170.6, subd. (a)(2); Solberg v. Superior Court (1977) 19 Cal.3d 182, 187.) If the motion, commonly referred to as a peremptory challenge, "is timely and in proper form, the judge must recuse himself without further proof and the case must be reassigned to another judge." (Solberg v. Superior Court, supra, at p. 187.)
An order granting or denying a peremptory challenge of a trial judge is not an appealable order. The exclusive means of seeking appellate review of the order is to file a petition for writ of mandate. (Code Civ. Proc., § 170.3, subd. (d); People v. Freeman (2010) 47 Cal.4th 993, 1000 (Freeman); People v. Hull (1991) 1 Cal.4th 266, 268 (Hull).) The failure to seek review by writ of mandate results in forfeiture of the issue. (Freeman, supra, at p. 1000.)
This rule fosters judicial economy and fundamental fairness " 'by eliminating the waste of time and money which inheres if the litigation is permitted to continue unabated, only to be vacated on appeal because the subsequent rulings and judgment were declared "void" by virtue of the erroneously denied disqualification motion.' [Citation.]" (Hull, supra, 1 Cal.4th at p. 272.) This rule also prevents the party asserting the challenge from receiving "an 'intolerable windfall.' If the ultimate judgment were favorable to the moving party, the disqualification issue would be moot. However, if the ultimate judgment were unfavorable, the moving party would receive a second 'bite at the apple,' i.e., a second opportunity to win the merits of the case. [Citation.]" (Id. at p. 273.)
Although Liggins acknowledges he did not file a petition for writ of mandate challenging the trial court's denial of his peremptory challenge, he contends he should be excused from this requirement because the trial court did not advise him he had to seek review in this manner. He further contends he was entitled to such an advisement because the Legislature generally requires courts to advise parties of their appeal rights if the parties have only a short time to exercise them.
As support for this broad proposition, Liggins cites to one statute and two court rules. The statute and one of the court rules require the trial court to notify parties of their need to seek an extraordinary writ in order to preserve the right to appeal an order setting a hearing to terminate parental rights. (Welf. & Inst. Code, § 366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.600(b).)*fn3 The other court rule requires the trial court to notify a criminal defendant in a felony case of the defendant's appeal rights after there has been a final judgment in the case. (Cal. Rules of Court, rule 4.305; see also Cal. Rules of Court, rules 4.306 and 4.470.)
We do not find these authorities persuasive support for Liggins's position, as we cannot infer from a single statute in a specialized area of law a general requirement for trial courts to notify parties whenever they may lose their appeal rights by failure to act. We also cannot infer such a requirement from court rules, as the Judicial Council adopts court rules to improve the administration of justice, not to confer individual rights. (Cal. Const., art. VI, § 6, subd. (d).)
Moreover, before the trial court granted Liggins's motion to represent himself, the trial court specifically advised Liggins that he would not get any special privileges or treatment, and he would be expected to follow court rules and procedures. In addition, Liggins filed numerous pretrial motions, including motions for discovery of peace officer personnel information, motions to disqualify the district attorney's office, and a motion for change of venue. He also filed multiple motions to disqualify trial judges for cause, as well as a prior peremptory challenge likewise found to be untimely. These pretrial efforts show both that Liggins was familiar with the statutes and procedures for disqualifying trial judges, and that he was capable of seeking an extraordinary writ had he wished to do so.
Furthermore, Liggins's forfeiture did not preclude him from asserting on appeal that we should reverse his conviction because the trial judge was actually biased. (People v. Brown (1993) 6 Cal.4th 322, 333-335 [failure to challenge the denial of a statutory motion for disqualification by writ petition does not preclude a criminal defendant from asserting on appeal that he or she was denied due process because the trial judge was actually biased].) Liggins has not made nor would the record appear to support such an assertion. Accordingly, we conclude finding forfeiture in this case would not result in any fundamental unfairness.
To prove one of the strike prior conviction allegations against Liggins, the prosecutor submitted documents from a 1992 Texas criminal case. The documents included a grand jury indictment charging Liggins with intentionally and knowingly using a hammer to threaten a person with imminent bodily injury. In addition, the documents included a guilty plea form and plea bargain agreement indicating Liggins pleaded guilty to the charge of aggravated assault and stipulated to the facts alleged in the indictment in exchange for deferred adjudication for four years. The documents also included a court order, consistent with the terms of plea bargain agreement, accepting Liggins's plea, deferring further adjudication of the case, and placing Liggins on probation for four years. Lastly, the documents included a subsequent court order finding Liggins had complied with the terms of his probation, and ordering his guilty plea set aside and the indictment dismissed.
Defendant contends these documents provide insufficient evidence to support the trial court's finding he previously suffered a conviction in Texas that qualified as a prior strike conviction under California law. We conclude there is no merit to this contention.
"A prior conviction for purposes of the three strikes law includes 'A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.' [Citations.]" (People v. Laino (2004) 32 Cal.4th 878, 895 (Laino).)
Liggins concedes that the offense of aggravated assault under Texas law has the same elements as the offense of assault with a deadly weapon under California law, and can qualify as a strike under California law if the defendant personally used a deadly weapon. (§§ 667, subd. (a)(4), 1192.7, subd. (c)(23).) He contends, however, his Texas offense was not a conviction because the Texas trial court deferred adjudication of his guilt and later dismissed the charges against him. He further contends his Texas offense should be considered a misdemeanor under California law, not a felony. We disagree with both points.
Under the three strikes law, whether a prior conviction constitutes a prior strike conviction is determined at the time the defendant enters a guilty plea. (§ 667, subd. (d)(1); Laino, supra, 32 Cal.4th at pp. 895-896, 898.) By pleading guilty to a Texas offense that qualifies as a prior strike under California law, Liggins suffered a conviction for purposes of the three strikes law. (Ibid.)
The sentence subsequently imposed for the conviction does not affect this determination unless the trial court reduced the conviction to a misdemeanor at the initial sentencing. (§ 667, subd. (d)(1); Laino, supra, 32 Cal.4th at pp. 895-896, 898.) Although the Texas court did not expressly reduce the offense to a misdemeanor at the initial sentencing, Liggins contends the court effectively did so by deferring adjudication of it because the offense is a "wobbler" under California law, and a sentence other than a prison terms converts a "wobbler" from a felony to a misdemeanor. (§§ 17, subds. (a), (b)(1); 245, subd. (a)(1).) This contention is flawed, however, because it ignores the provision in the three strikes law specifically precluding the suspension of imposition of judgment from affecting the determination of whether a prior conviction constitutes a prior strike. (§ 667, subd. (d)(1)(A).) Because of this preclusion, the Texas court's deferred adjudication could not have converted the Texas offense from a felony to a misdemeanor for purposes of the three strikes law. Accordingly, we conclude there is sufficient evidence to support the trial court's finding Liggins's Texas offense constitutes a prior strike conviction.
When sentencing Liggins, the trial court imposed sentence enhancements for a prior serious felony conviction and a prior prison conviction that were both based on the same underlying offense. Liggins contends, the People concede, and we agree the trial court should have struck the prior prison conviction finding, as California law and the federal constitution prohibit the imposition of two sentence enhancements for the same prior offense. Instead, when multiple statutory enhancements are available for the same offense, the trial court should only apply the greatest enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.)
The judgment is modified to strike the one-year sentence for the prior prison conviction finding. The trial court is directed to amend the abstract of judgment accordingly and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: HUFFMAN, J. McINTYRE, J.