Legal Question in Criminal Law in California

Re: Conflict

It isn't really a conflict, but it would likely create at least the appearance of bias. Most judges would probably recuse themselves (remove themselves from the case) voluntarily under such circumstances.

If the judge doesn't do so it may be because she doesn't realize that the party before her is the one who had complained about her in the past. A party can request that the judge recuse herself.

Additionally, when either the party or the judge is new to the case, the party can file a peremptory challenge and have the case reassigned to a different judge. Each side (not each party) only gets to do this once per case.

Re: Conflict

File a 170.6 affidavit of prejudice. You can do it without listing any reason if it is within 10 days of the date you learned of this judge's assignment to your case. You can pick up this form from the Clerk of the Court or from the Public Defender's office. However, if it has been, as I suspect, longer than ten days, file the affidavit, listing specifically that you feel the judge could not be impartial due to your earlier complaint against him/her.

Having said that, I suspect you've left out some pertinent information-- like why you are already at sentencing?? Did this judge preside over your trial or all of your pre-trial proceedings and entry of your guilty plea? If so, your issue becomes much more complex. Let me know if there are such additional facts, and this will change my answer accordingly.

You can e-mail me directly at [email protected]

Good luck,

JACQUELINE GOODMAN RUBIO

Attorney at Law

714-879-5770