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People v. Mayfield1/2/1997
counsel's representation and the disruption that granting the motion would cause--weighed strongly against the granting of the motion, denial of the motion was not an abuse of the trial court's discretion.
B. Motion to Disqualify Trial Judge
When he moved for self-representation, defendant simultaneously moved to disqualify the trial Judge, Judge Kayashima, for bias and racial prejudice. Judge Kayashima referred the disqualification motion to Presiding Judge Rouse. After considering documents submitted by defendant and Judge Kayashima's responding declaration, Judge Rouse denied the disqualification motion. Defendant contends that Judge Rouse did not have authority to rule on the challenge and that Judge Kayashima's responding declaration was defective.
Under our statutory scheme, a petition for writ of mandate is the exclusive method of obtaining review of a denial of a judicial disqualification motion. (Code Civ. Proc., § 170.3, subd. (d); People v. Hull (1991) 1 Cal. 4th 266, 269 [2 Cal. Rptr. 2d 526, 820 P.2d 1036].) Nevertheless, a defendant may assert on appeal a claim of denial of the due process right to an impartial Judge. ( People v. Brown (1993) 6 Cal. 4th 322, 335 [24 Cal. Rptr. 2d 710, 862 P.2d 710].) Accordingly, we construe defendant's contention as a due process claim.
Defendant's moving papers asserted that Judge Kayashima was prejudiced against him and had been "since the onset of proceedings in this case." He further alleged that Judge Kayashima was "racially prejudiced" against him "to such an extent that a reasonable person would entertain doubts that the Judge can be impartial" and that Judge Kayashima had "shown this prejudice by his repeated denials of [defendant's] motions to relieve Mr. Bristoll." In his declaration, Judge Kayashima stated that he had no prejudice or bias against defendant and that he had been and would continue to be completely impartial in the case.
We have already concluded that Judge Kayashima did not err in denying defendant's motion to replace Bristoll as his attorney (pt. VI.A., ante). Having carefully reviewed the entire record, we find nothing in the Judge's handling of that motion, or in any other part of the record, that supports the charge of bias or prejudice, racial or otherwise. Accordingly, we conclude that defendant was not denied his due process right to an impartial Judge.
Nor do we find merit in defendant's procedural contentions. Although defendant told Judge Kayashima that he wanted Judge Ingro to hear the disqualification motion, he did not repeat the request when Judge Kayashima referred the matter to Presiding Judge Rouse, and defendant's failure to object when Presiding Judge Rouse undertook to decide the matter himself constitutes an implied consent (see In re Horton (1991) 54 Cal. 3d 82, 91 [284 Cal. Rptr. 305, 813 P.2d 1335]), thus satisfying the statutory requirement that the disqualification motion be heard by a Judge "agreed upon by all the parties . . ." (Code Civ. Proc., § 170.3, subd. (c)(5)). Although the statute refers to a "written verified answer" by the challenged Judge (Code Civ. Proc., § 170.3, subd. (c)(3)), a written declaration under penalty of perjury, such as Judge Kayashima submitted, satisfies this statutory requirement. (See Code Civ. Proc., § 446, subd. (a); Hollingsworth v. Superior Court (1987) 191 Cal. App. 3d 22, 25-26 [236 Cal. Rptr. 193].)
C. Motion for New Penalty Trial
Through Bristoll, his appointed counsel, defendant moved for a new penalty trial on the ground that the trial court had "erred in the decision of question of law" (§ 1181, subd. 5) when it denied his motion to replace Bristoll with other appoint
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