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People v. Superior Court (Tejeda)

California Court of Appeals, Fourth District, Third Division

July 25, 2016

THE PEOPLE, Petitioner,

          Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, No. 14ZF0338, Richard M. King, Judge.

          Petition granted.

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         Tony Rackauckas, District Attorney, Stephan Sauer and Brian F. Fitzpatrick, Deputy District Attorneys, for Petitioner.

         Schonbrun Seplow Harris & Hoffman, Paul L. Hoffman; and Erwin Chemerinsky for Respondent.

         Sharon Petrosino, Public Defender, and David Dworakowski, Assistant Public Defender, for Real Party in Interest.

         Opinion by O'Leary, P. J., with Aronson, J., concurring. Concurring opinion by Aronson, J. Dissenting opinion by Thompson, J.


          [205 Cal.Rptr.3d 202] O'LEARY, P. J.

          Nearly 40 years ago, our Supreme Court reaffirmed " that Code of Civil Procedure section 170.6, which provides for the disqualification of trial judges on motion supported by an affidavit of prejudice, does not violate the doctrine of the separation of powers or impair the independence of the judiciary." [1] ( Solberg v. Superior Court (1977) 19 Cal.3d 182');">19 Cal.3d 182, 186-187 [137 Cal.Rptr. 460');">137 Cal.Rptr. 460, 561 P.2d 1148] ( Solberg ).) It did so after considering " experience with the statute [in the preceding] decades and as applied ... in a criminal context." ( Id. at p. 187.) The Solberg court reasoned, " to the extent that abuses persist in the utilization of section 170.6 they do not, in our judgment, 'substantially impair' or 'practically defeat' the exercise of the constitutional jurisdiction of the trial courts. Rather, it may be helpful to view them as a relatively inconsequential price to be paid for the efficient and discreet procedure provided in section 170.6. The statute thus remains a reasonable--and hence valid--accommodation of the competing interests of bench, bar, and public on the subject of judicial disqualification. We do not doubt that should future adjustments to this sensitive balance become necessary or desirable, the Legislature will act with due regard for the rights of all concerned." ( Solberg, supra, 19 Cal.3d at p. 204.)

Page 896

         Although we question the wisdom of the Solberg holding in light of the complexities of modern court administration, we are bound to follow Supreme Court authority. For reasons we explain anon, we urge the Supreme Court to revisit the issue of blanket papering to determine whether the impact of an abusive use of Code of Civil Procedure section 170.6, such as demonstrated in this record, can be viewed as inconsequential on a trial court in the performance of its duty to administer justice.

         No fundamental adjustments to this balance have been made by either the Legislature or the Supreme Court in the ensuing 39 years. Respondent Superior Court of Orange County (respondent court), however, refused to grant a section 170.6 motion filed on behalf of petitioner, the People of the State of California, because the Orange County District Attorney (district attorney) invoked an improper blanket challenge to a particular judge that substantially disrupted the respondent court's operations. As interpreted by respondent court, Solberg did not foreclose a separation of powers challenge to the executive branch's apparent abuse of section 170.6 under the circumstances of this case.

         In our view, however, Solberg anticipated circumstances very similar to those faced here. Rightly or wrongly, the Solberg court concluded the peremptory challenge [205 Cal.Rptr.3d 203] at issue would not constitute a separation of powers violation. Because we are bound by the reasoning in Solberg, we must grant the petition for writ of mandate.


         In December 2014, real party in interest Rito Tejeda was charged with murder. (Pen. Code, § 187, subd. (a).) On December 3, 2015, respondent court assigned Tejeda's case to Judge Thomas Goethals for all purposes and set the matter for a pre-trial hearing in Judge Goethals' courtroom. That same day, petitioner moved to disqualify Judge Goethals pursuant to section 170.6. The motion was supported by a declaration executed under penalty of perjury by an attorney with the district attorney's office. The declaration represented that Judge Goethals " is prejudiced against the party or the party's attorney, or the interest of the party or party's attorney, such that the declarant cannot, or believes that he/she cannot, have a fair and impartial trial or hearing before the judicial officer."

         Later that day, respondent court denied the motion to disqualify Judge Goethals, " without prejudice to the People's or the defendant's right to seek reconsideration of this order, should they choose to do so." Notice of entry of the order was served by mail.

Page 897

         On December 17, 2015, petitioner sought writ relief from this court. (§ 170.3, subd. (d).) This court issued an order to show cause on February 11, 2016, and subsequently set the matter for oral argument.


         The factual record in this matter is unusual. Petitioner did not submit evidence (other than the standard form § 170.6 declaration) with its motion. Tejeda did not oppose the motion, with evidence or otherwise. Instead, respondent court took judicial notice of facts and events outside the scope of this particular case in supporting its conclusions (1) the district attorney's office was engaged in improper " 'blanket papering'" of Judge Goethals in murder cases, and (2) the effect of the blanket challenge was to " substantially disrupt[] the orderly administration of criminal justice in Orange County." We summarize the lengthy recitation of facts from respondent court's order.

         Judge Goethals practiced criminal law for more than 20 years, both as a member of the district attorney's office and as a private attorney representing criminal defendants. Since his appointment to the bench in 2003, Judge Goethals has presided over exclusively criminal matters, including " long cause cases" (the most complicated murder cases). " Judge Goethals has prosecuted capital cases, defended capital cases, and ... presided over capital cases ... ."

         In January 2012, Judge Goethals was assigned the long cause case of People v. Dekraai (Super. Ct. Orange County, 2012, No. 12ZF0128). In January 2013, Judge Goethals granted a defense discovery request pertaining to an inmate informant to whom defendant Dekraai had allegedly made incriminating statements. After receiving discovery materials, the defense filed three motions in January and February 2014 (to dismiss the death penalty allegations, to disqualify the district attorney's office based on an alleged conflict of interest, and to exclude from evidence any statements made by Dekraai to the informant). These motions were based on defense allegations that members of the district attorney's office and law enforcement officers had engaged in misconduct (perjury, subornation of perjury, intentional violation of criminal defendants' [205 Cal.Rptr.3d 204] constitutional rights, and obstruction of justice) in connection with the use of informants. Judge Goethals refused the prosecution's request to deny the motions without an evidentiary hearing.

         Judge Goethals began hearing evidence on all three motions on March 18, 2014. On August 4, 2014, Judge Goethals made factual findings that (1) law enforcement officers intentionally moved informants at the jail in an attempt to obtain incriminating statements, and (2) prosecutors had committed negligent violations of Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194].

Page 898

Judge Goethals ruled that Dekraai's statements should be excluded from evidence, but denied the other two motions.[2] However, after new evidence was presented by the defense pertaining to the existence of a computerized system for handling informants, Judge Goethals granted the motion to disqualify the district attorney's office on March 12, 2015.

         In the wake of these rulings, the district attorney's use of peremptory challenges against Judge Goethals changed dramatically. The raw numbers are stark. " For over three years, from December 7, 2010 through February 24, 2014, Judge Goethals was assigned 35 murder cases for trial and was disqualified once by the People. From February 25, 2014 through September, 2015, a period of [18] months, Judge Goethals was assigned 49 murder cases for trial and was disqualified 46 times by the People." (Italics omitted.) The pattern continued with this case and others assigned to Judge Goethals in December 2015.

         Respondent court's order then turned to the consequences of the district attorney's repeated disqualification of Judge Goethals. " Six months after the People began disqualifying Judge Goethals, the negative impact became readily apparent: the four other long cause judges had significantly more murder cases than Judge Goethals. This raised concerns because ... Penal Code section 1050 requires the judiciary to have courts available for trial at the earliest time possible. Furthermore, ... the purpose of having a long cause judge--one with a low-enough caseload to allow a seasoned judge to give sufficient time to a murder trial--was being defeated."

         Respondent court's multiple efforts to reassign murder cases to Judge Goethals were all rebuffed by section 170.6 challenges from the district attorney's office. " By April, 2015, [respondent court] was in a crisis. New murder cases were being added to its inventory, which included unresolved murder cases. In addition, a backlog of hundreds of other felony cases was becoming a significant problem. Short cause judges were unavailable to try the shorter felony cases because they were presiding over two-to-three-week murder trials. To solve this problem, long cause judges were assigned short cause cases, taking away the time necessary to be devoted to long cause murder cases."

         Assignments were shuffled between the various judicial officers at respondent court, in the hope that the blanket challenge phenomenon would be temporary. But it continued unabated through the autumn of 2015.

         " [T]he effect of the People's 'blanket' disqualification of Judge Goethals has caused murder cases and other felony cases to languish unnecessarily. It

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has caused strain in misdemeanor operations. As a result, the court's responsibility to ensure the orderly administration of justice has been severely impacted."

          [205 Cal.Rptr.3d 205] The court observed that it could simply reassign Judge Goethals, but declined to do so: " The very thought of this option is offensive. To allow a party to manipulate the court into removing a judge from hearing certain criminal cases--when that judge, in the performance of his judicial duties, has conducted a hearing which exposed that same party's misconduct--not only goes against the very cornerstone of our society: the rule of law, but would be a concession against judicial independence." (Italics omitted.)


         Peremptory Challenges Under Section 170.6

          " [S]ection 170.6 provides that no superior court judge shall try any civil or criminal action involving a contested issue of law or fact when it is established that the judge is prejudiced against any party or attorney appearing in the action." ( The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1031 [22 Cal.Rptr.3d 885');">22 Cal.Rptr.3d 885, 103 P.3d 283] ( Home Ins. Co. ); see § 170.6, subd. (a)(1).) Of course, " actual prejudice is not a prerequisite to invoking the statute." ( Solberg, supra, 19 Cal.3d at p. 193.) Instead, section 170.6 allows for the disqualification of judges based upon the mere " 'belief of a litigant' that he cannot have a fair trial before the assigned judge." ( Solberg, supra, 19 Cal.3d at p. 193; see § 170.6, subd. (a)(2).)

         Peremptory challenges under section 170.6 " are presented in the form of a motion, but they fall outside the usual law and motion procedural rules, and are not [in the typical case] subject to a judicial hearing." ( Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 408 [132 Cal.Rptr.3d 602].) Within its circumscribed limits, section 170.6 authorizes parties (or their attorneys), rather than courts, to unilaterally decide whether a judge is " prejudiced." ( Home Ins. Co., supra, 34 Cal.4th at p. 1032 [§ 170.6 permits party to obtain disqualification of judge for prejudice based solely upon sworn statement without having to establish prejudice as matter of fact to satisfaction of court].) Courts must honor procedurally sufficient, timely presented section 170.6 motions. (§ 170.6, subd. (a)(4) [" If the motion is duly presented, and the affidavit or declaration ... is duly filed ..., thereupon and without any further act or proof, the judge supervising the master calendar ... shall assign some other judge ... to try the cause or hear the matter" ]; see Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59 [116 Cal.Rptr.2d 616].)

         The atypical power conferred upon parties (and their attorneys) by section 170.6 is not " an unconstitutional delegation of legislative and judicial powers

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to litigants and their attorneys" ; nor is it " an unwarranted interference with the powers of the courts." ( Johnson v. Superior Court (1958) 50 Cal.2d 693');">50 Cal.2d 693, 696 [329 P.2d 5] ( Johnson ) [affirming facial constitutionality of § 170.6, which applied only to civil cases at the time].)

         Appellate Court Review of Order Denying Peremptory Challenge

          " An order denying a peremptory challenge is not an appealable order and may be reviewed only by way of a petition for writ of mandate." ( Daniel V. v. Superior Court (2006) 139 Cal.App.4th 28, 39 [42 Cal.Rptr.3d 471]; see § 170.3, subd. (d).) Hence, there is no adequate remedy at law for rejected section 170.6 motions--filing a writ petition is " the exclusive means of appellate review of an unsuccessful peremptory challenge motion." ( People v. Hull (1991) 1 Cal.4th 266, 276 [2 Cal.Rptr.2d 526, [205 Cal.Rptr.3d 206] 820 P.2d 1036]; see § 1086 [writ of mandate appropriate " where there is not a plain, speedy, and adequate remedy, in the ordinary course of law" ].) Even assuming petitioner is required to establish irreparable harm in bringing this statutory writ petition,[3] such harm is obvious in the context of judicial disqualification. (§ 170.6, subd. (a)(1) [" A judge ... shall not try a ... criminal action ... of any kind ... when it is established as provided in this section that the judge ... is prejudiced" ].) As explained above, a party can disqualify a judge by executing a sworn statement indicating a belief that the party cannot have a fair trial before the assigned judge. Section 170.6 would ring hollow if the moving party were required to prove in a writ petition that the disqualification motion would actually make a difference in the outcome of the case (an inherently speculative enterprise) or that the moving party could not successfully move to disqualify the trial judge for cause under section 170.3 (a showing that would undermine § 170.6 by requiring the party to disclose the specific reason for believing the judge was not fair and impartial and to explain why evidence could not be marshaled to disqualify the judge for cause).

Page 901

          It has often been stated that courts review an order denying a section 170.6 motion for an abuse of discretion. (E.g., Grant v. Superior Court (2001) 90 Cal.App.4th 518, 523 [108 Cal.Rptr.2d 825].) This standard of review has meaning in some cases, when there are factual questions that must be sorted out by trial courts before the motion can be granted or denied. For instance, section 170.6, subdivision (a)(4), limits " each side" of a case to one peremptory challenge. It may be unclear in some cases whether " joined parties (e.g., codefendants) are on the same side." ( Orion Communications, Inc. v. Superior Court (2014) 226 Cal.App.4th 152, 159 [171 Cal.Rptr.3d 596].)

         But a trial court has no discretion to refrain from following binding Supreme Court authority. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [20 Cal.Rptr. 321, 369 P.2d 937]; People v. Franc (1990) 218 Cal.App.3d 588, 593 [267 Cal.Rptr. 109] [" Although stare decisis doctrine retains some flexibility, it permits only the California Supreme Court, not a lower court, to depart from Supreme Court precedent" ].) As acknowledged in respondent court's order, the paramount legal question in this case is the reach of Solberg, supra, 19 Cal.3d 182: " As a decision of the state's highest court, the holding in Solberg must be followed by all inferior California courts. [Citations.] [¶ ] But is Solberg 's holding so broad that it requires all trial courts to grant all timely blanket challenges regardless of the circumstances?" [205 Cal.Rptr.3d 207] Our review is de novo with regard to the question of whether Solberg precludes an inquiry by respondent court into the district attorney's use of section 170.6.

         In our view, petitioner is entitled to writ relief because Solberg cannot be " fairly distinguished" ( Trope v. Katz (1995) 11 Cal.4th 274, 287 [45 Cal.Rptr.2d 241, 902 P.2d 259]) from the factual scenario presented here. Under these circumstances, we conclude Solberg precluded respondent court from assessing the motivations and weighing the consequences of the district attorney's peremptory challenges as a basis for denying a section 170.6 motion on separation of powers grounds.

         Solberg--Factual and Procedural Context

         The factual and procedural context of Solberg, supra, 19 Cal.3d 182, is complicated, with a technical wrinkle that potentially bears on its authoritative power. In four prostitution matters, the deputy district attorney exercised his section 170.6 right to disqualify the assigned municipal court judge prior to hearings scheduled to entertain dismissal motions. The municipal court judge declined to disqualify herself. ( Solberg, supra, 19 Cal.3d at pp. 187-188.) At superior court writ proceedings initiated by the district attorney, counsel for the municipal court offered to prove that the disqualification motions " were 'blanket challenges' motivated by prosecutorial discontent with [the municipal court judge's] prior rulings of law." ( Id. at p. 188.)

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The superior court judge " denied the offer as immaterial" and " quashed subpoenas issued against the district attorney and his staff for the purpose of eliciting such proof." ( Ibid. ) The superior court judge issued writ relief compelling disqualification of the municipal court judge. This judgment was appealed and the California Supreme Court later granted review. ( Id. at pp. 188-189.)

         Before the superior court judge issued his writ of mandate, two of the four real parties in interest (i.e., the defendants accused of prostitution) filed section 170.6 motions to disqualify the superior court judge. ( Solberg, supra, 19 Cal.3d at p. 188.) The superior court judge denied the motions on two grounds: (1) he was acting as an appellate judge in the matter at issue and (2) the challenges were filed by real parties in interest (not true parties). ( Id. at p. 189.) Real parties filed a writ petition with the Court of Appeal to challenge the superior court judge's denial of their section 170.6 motions; " that proceeding [was brought before the Supreme Court] on an alternative writ issued by the Court of Appeal." ( Solberg, supra, 19 Cal.3d at p. 189.)

         Thus, the Solberg court had before it two distinct but related matters--the judgment (a writ of mandate compelling the disqualification of the municipal court judge), and a writ proceeding (seeking a writ of mandate compelling the disqualification of the superior court judge). The Solberg opinion disposed of both disputes.

         As to the writ proceeding, the Supreme Court rejected the superior court judge's grounds for refusing to honor section 170.6 motions filed by real parties. ( Solberg, supra, 19 Cal.3d at pp. 189-190.) " A writ of mandate will therefore lie to compel [the superior court judge] to vacate his order denying the motion for disqualification. [¶ ] All orders made thereafter by [the superior court judge] in these proceedings are likewise void, including the judgment directing issuance of a peremptory writ commanding [205 Cal.Rptr.3d 208] [the municipal court judge] to disqualify herself in the criminal matters." ( Id. at p. 190.) The last paragraph of the opinion ordered with regard to the writ proceeding: " [L]et a peremptory writ of mandate issue as prayed." ( Id. at p. 204.)

         Having determined the superior court judge's orders were void, including the writ of mandate compelling the disqualification of the municipal court judge, the Solberg court was not obligated to review the merits of the judgment. Indeed, the disposition of the appeal in the last paragraph of the opinion was the following: " the appeal is dismissed." ( Solberg, supra, 19 Cal.3d at p. 204, italics added.) There was no need to affirm or reverse the

Page 903

judgment; there was no longer any judgment to review. The opinion could have ended on its fifth page.[4]

         Instead, the majority opinion continued for 14 additional pages, composed of an in depth review of the constitutionality of section 170.6. The court explained, " the issues presented by the appeal from that judgment will doubtless arise on remand, and we therefore proceed to address their merits." ( Solberg, supra, 19 Cal.3d at p. 190.)

         It is the 14 pages of, strictly speaking, unnecessary analysis that pertains to the separation of powers issue raised in this case. Is this portion of Solberg composed solely of dicta? Can it be deemed a holding, despite the fact that it was not necessary to the disposition of the appeal?

          " 'Only statements necessary to the decision are binding precedents ... .' [Citation.] 'The doctrine of precedent, or stare decisis, extends only to the ratio decidendi of a decision, not to supplementary or explanatory comments which might be included in an opinion.'" ( Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 272 [82 Cal.Rptr.3d 629] [declining to follow dicta of California Supreme Court].) Of course, " it is often difficult to draw hard lines between holdings and dicta." ( United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 834 [209 Cal.Rptr. 16] ( United Steelworkers ).) In United Steelworkers, the appellate court treated a prior Supreme Court's " broad answers to the questions raised by all parties" for guidance " on remand" as a holding. ( Ibid. ) Similarly, in Solberg the court intended to instruct the lower court on remand and provided a full account of its reasoning in providing those instructions.

         Moreover, " '[e]ven if properly characterized as dictum, statements of the Supreme Court should be considered persuasive. [Citation.]' [Citation.]" ( Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169 [78 Cal.Rptr.2d 819].) " When the Supreme Court has conducted a thorough analysis of the issues and such analysis [205 Cal.Rptr.3d 209] reflects compelling logic, its dictum should be followed." ( Hubbard v. Superior Court, supra, at p. 1169.)

Page 904

         In sum and on balance, we are bound by Solberg in our examination of the separation of powers issue presented. Even if rightly considered dicta, the 14 pages of analysis included in Solberg on the separation of powers issue cannot simply be discarded by an inferior court. We need not decide whether the unusual procedural features of Solberg would affect our Supreme Court's application of stare decisis principles should it choose to review the instant case.

         Solberg's Separation of Powers Analysis

         As presented to the Supreme Court, the Solberg appellants' principal contention was " that section 170.6 is unconstitutional because it violates the doctrine of separation of powers [citation] and impairs the independence of the judiciary [citation]." By not requiring any reasons for disqualification to be stated, " the statute in effect delegates ... the judicial power to determine whether [a ground for disqualification] exists in the particular case in which it is invoked." ( Solberg, supra, 19 Cal.3d at pp. 190-191.)

          Solberg rejected appellants' contentions, reaffirming the continuing vitality and applicability to criminal cases of Johnson, supra, 50 Cal.2d 693');">50 Cal.2d 693, which held 19 years earlier that section 170.6 was constitutional. Point by point, Solberg rejected critiques of section 170.6 and Johnson. ( Solberg, supra, 19 Cal.3d at pp. 191-193.) After stating actual prejudice is not required to invoke section 170.6, Solberg characterized section 170.6 as " 'an extraordinary right to disqualify a judge.'" ( Solberg, supra, 19 Cal.3d at p. 193.) Much of the initial analysis discussed asserted abuses of section 170.6 that had only become known after Johnson, e.g., judge-shopping (including to avoid a judge whose legal views are not helpful to one's case), use for tactical advantage (including to delay a case, particularly in single-judge courtrooms or single-judge specialty courts), and false swearing of affidavits. ( Solberg, supra, 19 Cal.3d at pp. 194-200.)

         The appeal was not limited to generalities. It was contended " that the case at bar [was] an example of" the abuses engaged in by counsel. The municipal court judge " dismissed a number of prostitution cases after ruling that the defendants therein were the victims of discriminatory law enforcement practices based on the suspect classification of sex because in each instance only the female prostitute, and not her male customer, was arrested and prosecuted. ... [P]rostitution charges against the individual real parties in interest herein came before [the municipal court judge] for the purpose of setting a date to hear their motions to dismiss on the same ground. The People moved to disqualify her under section 170.6 allegedly because of a perceived inability to have a fair trial 'in cases of these kinds in this court' [citation]. Appellants assert that the circumstances and wording of the motion

Page 905

show it was primarily based on the People's dissatisfaction with [the municipal court judge's] prior legal ruling on discriminatory law enforcement." ( Solberg, supra, 19 Cal.3d at p. 194, fn. 11.)

         The Solberg court assumed the charges of abuses were true. It did " not condone such practices, nor [did it] underestimate their effect on the operation of our trial courts." ( Solberg, supra, 19 Cal.3d at p. 195.) But the existence of abuses did not result in the court declaring section 170.6 to be [205 Cal.Rptr.3d 210] unconstitutional, either in general or as applied to the specific case before it. ( Solberg, supra, 19 Cal.3d at pp. 192-200.)

         In addressing the appellants' challenge to the statute, the court did not indicate whether it viewed the challenge to be a " facial" or an " as applied" challenge. Reviewing the discussion, we conclude the court considered it as both. Reliance on Johnson, supra, 50 Cal.2d 693');">50 Cal.2d 693, suggests a facial challenge analysis. The court also recognized the significant delay in a single-judge court and the inevitable delay in even a multi-judge court that will result from the filing of an affidavit. ( Solberg, supra, 19 Cal.3d at p. 195.) It acknowledged that in multi-branch courts, a disqualification may also result in a desired change in the place as well as the date of trial and " in courts with specialized departments--such as a psychiatric or juvenile department--the statute has been used to remove the judge regularly sitting in that department in the hope of benefiting from the substitution of a less experienced judge." ( Ibid. ) And lastly, the court recognized the statute could be " invoked to intimidate judges generally and in certain cases even to influence the outcome of judicial election campaigns [citation]." ( Ibid. ) After consideration of these various potential abuses, the court concluded it would not hold the statute invalid as applied. ( Ibid. )

         Most pertinent to the petition before us is Solberg 's analysis of the contention that Johnson was distinguishable because it was a civil case. " The argument is that in all criminal actions the plaintiff and its attorney remain the same, i.e., the People of the State of California represented by the district attorney; the defendant is different in each case, but in most instances is represented by the same counsel, the public defender. This uniformity of either party or counsel assertedly permits the 'institutionalization' of many of the abuses discussed herein, and in particular the abuse known as the 'blanket challenge.' The practice occurs when as a matter of office policy a district attorney or a public defender instructs his deputies to disqualify a certain disfavored judge in all criminal cases of a particular nature ... or in all criminal cases to which he is assigned. The former policy ...

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