Date: February 28, 2017


*Study shows defense files 60 percent of judge disqualifications

SANTA ANA, Calif. – The Court of Appeal, Fourth Appellate District, Division Three (DCA), granted the Orange County District Attorney’s Office (OCDA) three writ petitions filed with the DCA to disqualify Judge Thomas Goethals and ordered the cases be assigned to a different judge. This is in response to the orders issued in December 2015, by the Honorable Richard M. King, “Order Denying Motion to Disqualify Judge.” The respondent, Orange County Superior Court, filed its response to those writ petitions by the Jan. 15, 2016, deadline. The OCDA’s writ litigation was handled by by Senior Deputy District Attorneys Stephan Sauer and Brian Fitzpatrick of the Appellate & Training Unit.

Procedural Facts

On Dec. 17, 2015, the OCDA filed five writ petitions with the DCA, challenging the five rulings by Judge King denying prosecutors from utilizing their right to file a peremptory challenge. The five cases include: People v. Jesus Montes and Ismael Zacaula (Case # 12CF2292), People v. Rito Tejeda (case # 14ZF0338), People v. Ismael Avalos and George Galvan (case # 12NF1681), People v. Thomas Wilhelm (case # 12ZF0154), and People v. Aleksandar Apostolovic (case # 15ZF0002).

On Jan. 22, 2016, the OCDA filed its reply with the DCA on the five writ petitions.

On July 25, 2016, DCA ordered Orange County Superior Court to vacate its order denying OCDA’s 170.6 motion and to assign People v. Rito Tejeda to a new judge.

People v. Thomas Wilhelm went to trial in front of Judge Goethals, who did not assign the case to a different judge despite the Tejeda ruling. On Nov. 9, 2016, Wilhelm was found guilty by a jury of first degree murder. On Feb. 3, 2017, Wilhelm was sentenced to 50 years to life in state prison.

Today, DCA granted three writ petitions for People v. Jesus Montes et al., People v. Ismael Avalos et al., and People v. Aleksandar Apostolovic. The Orange County Superior Court was ordered to vacate its orders denying OCDA’s 170.6 motion and to issue a new and different order assigning all three cases to a new judge other than Judge Goethals.

Although the OCDA agrees with the DCA’s ruling on Tejeda and the three new cases, the OCDA maintains that there has never been “blanket papering” of any judicial officer. Any exercise of peremptory challenge made by any member of the OCDA has been the individual prosecutor’s decision to do what is in the best interest of the People, public safety, and crime victims.

The published opinions in their entirety can be found at To read the People’s March 25, 2016 reply, please visit and select, “People v. Rito Tejeda Formal Reply,” in Reports under the Reports pull-down menu.

Rulings by the DCA in Apostolovic, Avalos et al., and Montes et al.

“This court recently held that Solberg v. Superior Court (1977) 19 Cal.3d 182 (Solberg) precluded California courts “from assessing the motivations and weighing the consequences of . . . peremptory challenges as a basis for denying a [Code of Civil Procedure] section 170.6 motion on separation of powers grounds.” (People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892, 901 (Tejeda).)”

“Despite the issuance of our Tejeda opinion, respondent court in this matter did not voluntarily change its order denying the district attorney’s section 170.6 motion. Once the decision in Tejeda was final, this court gave notice (both on December 8, 2016, and January 13, 2017) that it was considering issuance of a peremptory writ of mandate in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) After all, this court had just decided an identical issue in Tejeda. This court offered all parties the opportunity to respond to its notice and offered respondent court the opportunity to consider changing its order. (See Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233.) Respondent court did not change its order.”

“We explained that ‘nothing in Solberg leaves room for the consideration of evidence or a different result if the evidence is substantial enough.’ (Id. at p. 907.) ‘[C]ourts should not conduct evidentiary hearings (or otherwise marshal evidence . . . ) to determine the extent of the abuses committed by parties utilizing section 170.6 challenges. Instead, courts should grin and bear this ‘reasonable—and hence valid—accommodation of the competing interests of bench, bar, and public on the subject of judicial disqualification.’’ (Ibid.)”

“Petitioner is clearly entitled to relief. ‘[N]o purpose could reasonably be served by plenary consideration of the issue . . . .’ (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Thus, it is appropriate here to issue a peremptory writ of mandate in the first instance. (Ibid.)”


The California Code of Civil Procedure section 170.6 gives every party the right to exercise a single peremptory challenge against any judge that litigant believes, in good faith, is prejudiced against him or her or his or her case. The authority conveyed by section 170.6 is a substantial right that is part of our system of due process and exists to ensure fair and impartial trials. The law does not require any party to explain their reasons for peremptorily challenging a judge, nor may a court inquire into those reasons.  It requires only that the party have a good faith belief that prejudice exists.

Factual study findings that show defense filed most of the judge disqualifications

In January 2016, the OCDA conducted research into how 170.6 challenges were exercised countywide between Feb. 24, 2014, and Dec. 3, 2015, the same period of time examined by Judge King in denying the People’s 170.6 motions. The variables included what judges were challenged, what party filed the challenge – an OCDA prosecutor, a criminal defense attorney, or other, what specific attorney filed the challenge, whether the challenge was granted or denied, and what was the principal felony or misdemeanor count in the underlying case. The limitations included basing the research on electronically-filed cases only and excluded civil cases, challenges filed that were then withdrawn, and cases that were not captured due to computer error.

It was found that a total of 847 challenges were filed against superior court judges in the time frame that was under review. Of the 847 peremptory challenges, most were filed by criminal defense attorneys, 501, which may consist of public, alternate, associate defenders, and private attorneys both retained and appointed. In contrast, OCDA prosecutors filed 340. The Anaheim City Attorney filed five and a victim filed one.

A total of 40 judges were challenged only by criminal defense attorneys. In contrast, only nine judges were challenged by OCDA prosecutors. It should be noted that Judge Goethals was challenged both by the prosecution and the defense. Even following his ruling recusing the OCDA on People v. Scott Dekraai, prosecutors have consistently litigated their cases in front of Judge Goethals.