Colorado § 16-6-201 - Disqualification of judge.

§ 16-6-201. Disqualification of judge.

(1) A judge of a court of record shall be disqualified to hear or try a case if:

(a) He is related to the defendant or to any attorney of record or attorney otherwise engaged in the case; or

(b) The offense charged is alleged to have been committed against the person or property of the judge or of some person related to him; or

(c) He has been of counsel in the case; or

(d) He is in any way interested or prejudiced with respect to the case, the parties, or counsel.

(2) Any judge who knows of circumstances which disqualify him in a case shall, on his own motion, disqualify himself.

(3) A motion for change of judge on any ground must be verified and supported by the affidavits of at least two credible persons not related to the defendant, stating facts showing the existence of grounds for disqualification. If the verified motion and supporting affidavits state facts showing grounds for disqualification, the judge must enter an order disqualifying himself. After disqualifying himself, the judge may require a full hearing upon the issues raised by the affidavits and shall request that another judge conduct the hearing. The other judge shall make findings of fact with regard thereto, and such findings shall be included as a part of the trial court record.

(4) The disqualified judge shall certify the need for a judge to the chief justice of the Colorado supreme court, who shall assign a judge to the case.

(5) The term "related", when used in this section, means related within the third degree by blood, adoption, or marriage.

Source: L. 72: R&RE, p. 219, § 1. C.R.S. 1963: § 39-6-201.

ANNOTATION

I. General Consideration.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to the personal interest of judge in case, see 15 Colo. Law. 1609 (1986).

Annotator's note. Since § 16-6-201 is similar to repealed § 39-9-2, C.R.S. 1963, CSA, C. 170, § 1, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The object of this section is to secure to an accused a fair and impartial trial by a judge uninfluenced by bias or prejudice against the party charged. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

The purpose of this section and Crim. P. 21(b), is to guarantee that no person is forced to stand trial before a judge with a bent of mind. People v. Botham, 629 P.2d 589 (Colo. 1981).

It is the duty of a judge to sit in a case in the absence of a showing that he is disqualified. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

Unless a reasonable person could infer that the judge would in all probability be prejudiced against the petitioner, the judge's duty is to sit on the case. Smith v. District Court, 629 P.2d 1055 (Colo. 1981).

Defendant does not lose right to change upon reindictment. The right of the accused to an impartial judge is not waived or lost by a previous application for a change in an indictment for the same offense, which previous indictment was dismissed at the request of the state. Lawson v. People, 63 Colo. 270, 165 P. 771 (1917).

Applied in People in Interest of A.L.C., 660 P.2d 917 (Colo. App. 1982).

II. GROUNDS FOR CHANGE OF JUDGE.

A. In General.

B. Interest.

C. Prejudice.

A. In General.

Grounds identical to those in Crim. P. 21(b). The grounds for disqualification set out in this section are identical to those set out in Crim. P. 21(b). People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977); Smith v. District Court, 629 P.2d 1055 (Colo. 1981); Comiskey v. District Ct., 926 P.2d 539 (Colo. 1996).

Test of judge's qualifications is same as that for jurors. Where the issues involved require the judge to pass upon the facts, and it is solely a question of fact which is presented for his consideration and determination, the same test of his qualifications to determine the matter should be applied as would be in determining the qualifications of jurors in the premises. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

General rule. This section by express terms makes the judge incompetent to try a case if he is in any way interested, or in any way prejudiced, or if he shall have been of counsel in the cause. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

The fact that the presiding trial judge was statutorily disqualified from presiding because of her prior involvement in the case as counsel for defendant, even though the judge's representation was minimal, amounts to structural error requiring reversal. People v. Garcia, 2022 COA 83, 519 P.3d 1064, rev'd on other grounds, 2024 CO 41M, 550 P.3d 637.

After reviewing the totality of the circumstances, the supreme court determined that defendant intentionally relinquished his known right to object to the statutorily disqualified judge who presided over his case. People v. Garcia, 2024 CO 41M, 550 P.3d 637.

And, because the record established that defendant waived his claim under this section, the court did not need to decide whether it was structural error for the statutorily disqualified judge to preside over defendant's case under the circumstances presented. People v. Garcia, 2024 CO 41M, 550 P.3d 637.

Subjective conclusion of rudeness not ground for disqualification. It does not comport with sound judicial policy or the intent of either Crim. P. 21(b) or this section to require disqualification of a judge solely on the basis of subjective conclusions that he was discourteous or rude. Carr v. Barnes, 196 Colo. 70, 580 P.2d 803 (1978).

B. Interest.

A disqualifying interest of a judge must necessarily relate to the subject matter of the litigation, and not to a determination of the facts and legal questions presented. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

The interest must be direct, apparent, substantial, certain, or immediate, and not one which is only indirect, contingent, incidental, remote, speculative, unreal, uncertain, inconsequential, or merely theoretical. Kostal v. People, 160 Colo. 64, 414 P.2d 123 (1966).

Sham action will not disqualify judge. The filing of sham or frivolous actions in which a judge is made a party for the sole purpose of disqualifying him in the trial of another case should not be allowed. Kostal v. People, 160 Colo. 64, 414 P.2d 123 (1966).

Facts showing interest are conclusive. To be in any way interested or to have been of counsel in the cause constitutes conclusive incompetency, and from the existence of those facts, or either of them, no other deduction can be made. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

C. Prejudice.

Due process principles, subsection (1)(d), and Crim. P. 21(b) require a judge's recusal only when the facts alleged in the motion to disqualify and supporting affidavits establish a reasonable inference that the judge has a bias or prejudice that in all probability will prevent the judge from dealing fairly with a party. This requires the moving party to show that the judge's interest is a direct, certain, and immediate interest, and not one that is indirect, contingent, incidental, or remote. Sanders v. People, 2024 CO 33, 549 P.3d 947.

The appearance of possible prejudice can dictate disqualification. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977).

Because appearances can be as damaging to public confidence in the courts as actual bias or prejudice, a trial judge must scrupulously avoid any appearance of bias or prejudice. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977).

But mere expression of belief that judge would not give fair trial does not show prejudice. The mere expression of a belief that the judge would not give the defendant a fair and impartial trial, without the statement of a single fact upon which such belief is based, is in no sense a compliance with the requirements of this section that the prejudice of the judge must be shown. Young v. People, 54 Colo. 293, 130 P. 1011 (1913).

A guilty plea does not waive review of an actual bias claim even if the claim arose prior to the plea. People v. Jennings, 2021 COA 112, 498 P.3d 1164.

A leaning or bias interfering with fairness will constitute prejudice. If the application discloses facts reasonably tending to the conclusion that the judge has a leaning towards one side of any question involved in the prosecution, or a bias in relation to it, which may interfere with fairness in judgment, he is prejudiced and incompetent within the meaning of this section. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915); Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); Smith v. District Court, 629 P.2d 1055 (Colo. 1981).

The facts will vary in accordance with the peculiar situation pertaining, but, as a general rule, sufficient factual matters must be stated to show bias and prejudice on the part of the trial judge to the extent that it may reasonably and substantially appear that his actions during the course of trial will be so influenced against defendant that a fair and impartial trial may not result. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

And it exists if case is decided on considerations not connected with facts. In any law suit where the issues involved are not determined alone from considerations that belong to them, there is prejudice within the meaning of the law, and such prejudice is necessarily against the party injured. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

It is not based upon judge's view of law. The right to disqualify the presiding judge is based upon an assumed prejudice or bias on his part, and not upon his views regarding the law of the case. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); Altobella v. People, 161 Colo. 177, 420 P.2d 832 (1966).

Thus, personal opinions as to issues generally not regarded as disqualifying judge. Personal opinions of a trial judge concerning issues in the cause before the court, or even as to the guilt or innocence of a defendant in a criminal case, are generally not regarded as disqualifying the judge unless his opinions be so pronounced that it can reasonably be said that he will be biased and prejudiced thereby during the trial. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

Speculation by trial judge concerning possible appellate response to a hypothetical review of the state's capital punishment statute does not provide the basis for an inference of any prejudice by the judge with respect to the defendant or his case. Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986).

Where no basis for disqualification. In the context of a confidential plea-bargaining conference, conducted off-the-record and in chambers, and where the challenged statement by the court implies nothing more than the judge's belief that the proposed plea and sentence concessions would not do justice, there is no basis for disqualification. Sober v. District Court, 197 Colo. 250, 592 P.2d 400 (1979).

Previous rulings of judge insufficient. Previous rulings of a presiding judge, although erroneous, numerous, and continuous, especially when they are subject to review, are not sufficient to show such bias or prejudice as would disqualify him. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); Altobella v. People, 161 Colo. 177, 420 P.2d 832 (1966).

Judges are not disqualified solely on the basis that they were formerly employed by the prosecutor's office. Instead, when employed by that office, the judge to be disqualified must have performed some role in the case or have obtained actual knowledge of disputed evidentiary facts of the case. People v. Julien, 47 P.3d 1194 (Colo. 2002).

A judge is not required to sua sponte disqualify him- or herself when the judge is related to a juror. Richardson v. People, 2020 CO 46, 481 P.3d 1.

Nor does a judge have a duty to excuse a juror who is related to the judge in the absence of any contemporaneous objection. Richardson v. People, 2020 CO 46, 481 P.3d 1.

Judge not disqualified due to prior prosecution of defendant while employed by prosecutor's office. Judge's prosecution of defendant seven years earlier involved similar but unrelated charges and resulted in a dismissal following defendant's successful motion to suppress. Judge not required to recuse himself where judge had no knowledge of evidentiary facts concerning the current case and no connection to the investigation, preparation, and presentation of the case. People v. Flockhart, 310 P.3d 66 (Colo. App. 2009), aff'd in part, rev'd in part, 2013 CO 42, 304 P.3d 227.

But trial judge, a former prosecutor, should have recused herself because she had served in a supervisory capacity over the attorneys who investigated or prosecuted case at the time they filed the charges against defendant. People v. Mentzer, 2020 COA 91, 487 P.3d 1236.

Prejudice must be directed to defendant individually or as a member of group or organization. The prejudice of a trial judge must be shown to be directed toward the defendant, individually, either as a result of personal dislike or feeling against the defendant, or that such prejudice may have resulted by reason of animosity toward some group or organization with which the defendant may have been associated or closely affiliated. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

Bond orders did not establish bias. The facts alleged concerning revocation of defendant's bond, resetting the bond at $100,000, and refusal to reduce the bond, when considered in the procedural setting out of which the orders arose, are not such as to establish to the satisfaction of a reasonable mind that the presiding judge had a bias or a prejudice that would in all probability prevent him from dealing fairly with the defendant. Altobella v. People, 161 Colo. 177, 420 P.2d 832 (1966).

There can be no presumption that a judge is intimidated by the outrage of the community in which the judge serves. Thus, motion for disqualification properly denied where there was no allegation that the judge was in fact intimidated by the community's animosity toward the defendant. People v. Vecchio, 819 P.2d 533 (Colo. App. 1991).

The trial court's statement that defendant's motion for a competency hearing was a "ploy" to delay the trial was adequately supported by what the judge learned in his judicial capacity during argument on pretrial motions concerning the defendant's competency, and such a statement does not constitute the kind of prejudice required for recusal. People v. Seigler, 832 P.2d 980 (Colo. App. 1991).

Judge who had experienced criminal conduct similar to that at issue in a road rage shooting case was not disqualified where it was unclear whether the incident involving the trial judge, who was not injured, stemmed from road rage or whether the judge was the intended target, and the judge had, seemingly without issue, tried numerous cases involving weapons and weapons in cars in the intervening three years. Sanders v. People, 2024 CO 33, 549 P.3d 947.

Judge's concern for welfare of alleged victim does not establish the reality or appearance of partiality. Wilkerson v. District Ct., 925 P.2d 1373 (Colo. 1996).

An appearance of impropriety cannot be inferred simply because the judge was a member of the general public that witnessed the fire started by defendant or because the judge assisted in general relief efforts. People v. Barton, 121 P.3d 224 (Colo. App. 2004).

However, numerous other allegations of the judge's personal involvement and comments made by the judge during the sentencing hearing about his or her personal experience presented legally sufficient basis to create the appearance of prejudice that could have prevented the judge from dealing fairly with the defendant. People v. Barton, 121 P.3d 224 (Colo. App. 2004).

Defendant did not establish actual bias requiring disqualification of sentencing judge. While judge's statements that he would be "haunt[ed]" by his decision to grant probation during defendant's prior criminal sentencing showed the judge was affected by his prior decision to be lenient with defendant, they were not enough to establish that the judge was unable to sentence defendant fairly. People v. Dobler, 2015 COA 25, 369 P.3d 686.

Mere filing of complaint with the judicial performance commission, without more, does not establish sufficient grounds for recusal. Further, county court judge's decision to recuse herself in seven prior cases does not lead to the conclusion that she should permanently recuse herself in all cases involving the attorneys. Kane v. County Court Jefferson County, 192 P.3d 443 (Colo. App. 2008).

III. MOTION FOR CHANGE.

A. In General.

B. Sufficiency of Motion.

A. In General.

The credibility of the persons making the affidavits required by the statute will be presumed, unless the contrary appears from the affidavits. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

The facts set forth in affidavits supporting a motion to disqualify a judge are not subject to a trial court's inquiry, but are presumed to be true. Smith v. District Court, 629 P.2d 1055 (Colo. 1981).

Facts establishing incompetency must be stated. The mere assertion that the judge is prejudiced or incompetent is not sufficient. The facts from which prejudice or incompetency is to be inferred must be set forth. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

In all cases necessary material or pertinent facts should be set out; in case of the prejudice of the judge, his attention would thus be called to some circumstance which he may have forgotten, or of which he was entirely ignorant, but which the petitioner might conceive to be a cause of prejudice. Hughes v. People, 5 Colo. 436 (1880).

A motion and accompanying affidavits requesting disqualification of a trial judge from participating in a case properly assigned to that judge must state facts from which it may be reasonably inferred that the judge has a bias or prejudice with respect to the case, a party, or counsel. Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986).

The requirement in this section that prejudice of the judge must be shown is of the same effect as an earlier statute by which the facts were expressly required to be stated. Young v. People, 54 Colo. 293, 130 P. 1011 (1913).

The mere statement of opinion or conclusion of the bias on the part of the trial judge is not sufficient in a motion seeking disqualification of a judge, and the facts from which the incompetency or prejudice is inferred must be stated. There has always been required, as essential to a proper recusation, a statement of facts in the affidavits sufficient to disclose the incompetency of the judge. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

Suspicion, surmise, speculation, rationalization, conjecture, innuendo, and statements of mere conclusions of the pleader may not be substituted for a statement of facts. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); People v. Cook, 22 P.3d 947 (Colo. App. 2000).

Affidavits need not state all essential facts. The affidavits in support of a motion for disqualification do not have to contain every essential fact which establishes the judge's prejudice; it is sufficient if the affidavits verify the facts set forth in the motion. People v. Botham, 629 P.2d 589 (Colo. 1981).

Affidavit may refer to another instrument for particulars. An affidavit may be made full and complete by reference to an attached instrument, or by having the particular matters so referred to embodied in the affidavit itself. Either is sufficient. Ausmus v. People, 47 Colo. 167, 107 P. 204 (1910); People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

Both actuality and appearance of fairness must be considered in reviewing a motion for disqualification and accompanying affidavits. People v. Botham, 629 P.2d 589 (Colo. 1981); Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986).

A motion for recusal must be verified and supported by affidavits of at least 2 credible witnesses not related to defendant. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).

Whether recusal is required will depend on whether defendant's motion and supporting affidavits set forth legally sufficient facts upon which bias or prejudice may be implied. James v. People, 727 P.2d 850 (Colo. 1986); People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).

If verified motion for change of judge and supporting affidavits state facts showing grounds for disqualification, the judge must enter an order disqualifying himself or herself. People v. Lanari, 926 P.2d 116 (Colo. App. 1996).

This section does not preclude the referral of a motion for disqualification to the chief judge for a hearing to determine the sufficiency of the allegations of a motion for substitute judge. People v. Lanari, 926 P.2d 116 (Colo. App. 1996).

This section nowhere provides for the filing of counteraffidavits. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

A previously executed affidavit can lend no verity to a subsequent pleading containing new matter. The second motion is not entitled to consideration as it does not comply with this section, being insufficient in form. Altobella v. People, 161 Colo. 177, 420 P.2d 832 (1966).

Motions for disqualification of a judge must be filed at the very earliest opportunity. Ordinarily this requires the filing of such a motion promptly upon the service of the information or at least by time of arraignment of the defendant in a criminal case. Usually the bias or animosity of the judge will be known to the defendant, or his counsel, at that time; hence the rule requiring prompt action. It is conceivable that in certain circumstances the fact of bias or prejudice on the part of a judge might not be ascertainable for some time after the filing of the information, but in such a situation a statement should be forthcoming showing the reason why the petition was not sooner filed. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

The requirements of Crim. P. 21(b) with respect to timely filing, apply whether the movant expressly invokes that rule or purports to proceed only under this section. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977).

Motion presented in apt time. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

Motion filed too late. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

Referring a motion for substitution to another judge for decision is not reversible error even if it is not the procedure contemplated by C.R.C.P. 21. Comiskey v. District Ct., 926 P.2d 539 (Colo. 1996).

B. Sufficiency of Motion.

Test of sufficiency. The facts stated must establish to the satisfaction of a reasonable mind that the judge has a bias or prejudice that will in all probability prevent him from dealing fairly with the defendant. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); People v. Baca, 633 P.2d 528 (Colo. App. 1981).

To be sufficient, the affidavits must state facts from which the respondent judge's prejudice may reasonably be inferred. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977).

The test of the legal sufficiency of a motion to disqualify a judge is whether the motion and affidavits state facts from which it may reasonably be inferred that the questioned judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with the defendant. Smith v. District Court, 629 P.2d 1055 (Colo. 1981); People v. Botham, 629 P.2d 589 (Colo. 1981); People v. Hrapski, 718 P.2d 1050 (Colo. 1986); People v. Seigler, 832 P.2d 980 (Colo. App. 1991).

Judicial recusal is required pursuant to motion once facts have been established from which it can be reasonably inferred that the judge has such bent of mind that he would be unable to deal fairly with the party seeking recusal. People v. Vecchio, 819 P.2d 533 (Colo. App. 1991); People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).

Evidence of either actual prejudice or the appearance of prejudice may suffice to require recusal. Estep v. Hardeman, 705 P.2d 523 (Colo. 1985); People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).

Where defendant failed to submit affidavits in accordance with requirements of this section and Crim. P. 21(b), and supplied allegations himself that record did not verify, there were insufficient grounds for disqualification. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).

Where nothing in motion or affidavits suggests that the judge or any employee was present when the defendant's crime pending before the judge was committed; that the judge or any employee was in any way personally victimized by the crime; or that the work of the judge or any employee was disrupted by the crime, it cannot be said that judge would necessarily be prejudiced against the party charged as to be unable to be fair in a future trial of that party on an unrelated charge. People v. Anderson, 991 P.2d 319 (Colo. App. 1999).

When a motion for disqualification is filed, the court must accept the facts alleged in the motion and supporting affidavits as true and must determine, as a matter of law, its adequacy. People v. Seigler, 832 P.2d 980 (Colo. App. 1991).

What a judge learns in his judicial capacity is a proper basis for judicial observations, and the use of such information is not the kind of matter that results in disqualification. Therefore, court's statement that the motion for a competency hearing was a "ploy" to delay the trial was adequately supported by what the judge learned in his judicial capacity during argument on pretrial motions concerning defendant's competency and did not constitute the kind of prejudice required for recusal. People v. Seigler, 832 P.2d 980 (Colo. App. 1991).

Motion and affidavits do not establish a particular bias or prejudice on the part of the trial judge even though ex parte communications did occur. Wilkerson v. District Ct., 925 P.2d 1373 (Colo. 1996).

Sufficiency is a matter of law. The finding of sufficiency in a motion for change of judge is a finding of law, and not fact, and this is true whether it be the finding of the trial court or of an appellate tribunal. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915); People ex rel. Bennet v. District Court, 84 Colo. 367, 270 P. 663 (1928).

The judge has the right, and it is his duty, to pass upon the adequacy of the motion seeking disqualification of a judge as a matter of law. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

Whether the motion is timely and whether it sufficiently states grounds for disqualification are questions of law subject to plenary review. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977).

Judge may determine sufficiency of motion but not question of prejudice. Where, in a criminal prosecution, motion is made for change of judge on the ground of prejudice in the mind of the presiding judge, such judge may hear and determine questions as to the sufficiency of the motion and the affidavits in support of it, but not the question whether in fact such prejudice exists. Erbaugh v. People, 57 Colo. 48, 140 P. 188 (1914).

The courts, in considering the sufficiency of the motion for a change of judge, can neither reject the pleading, nor disregard the facts alleged therein. They can only apply the law and test thereby the sufficiency of the facts alleged. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

Although the trial judge must, of necessity, initially determine the timeliness and legal sufficiency of a motion to disqualify him for prejudice, he cannot pass upon the truth or falsity of statements of fact in the motion and supporting affidavits. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977).

Thus, facts are accepted as true. The change of judge is conditioned, not upon the actual fact of his prejudice, but upon the imputation of it. The facts set forth in the recusation must, for the purposes of the motion, be accepted as true, notwithstanding they may be known to the judge and all mankind to be false. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

While the alleged prejudicial judge may pass upon the question of law involving the sufficiency of the petition and affidavit, the question of the truth of the allegation is never tried. Erbaugh v. People, 57 Colo. 48, 140 P. 188 (1914).

As a matter of judicial policy, courts must take as true, for purposes of a motion to disqualify, facts stated in the affidavits and motion. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977); People v. Botham, 629 P.2d 589 (Colo. 1981); Comiskey v. District Ct., 926 P.2d 539 (Colo. 1996); People v. Cook, 22 P.3d 947 (Colo. App. 2000); Kane v. County Court Jefferson County, 192 P.3d 443 (Colo. App. 2008).

Judge loses jurisdiction except to grant change. The motion and affidavits are conditions imposed by this section. Upon legally sufficient compliance, the defendant is entitled to a change as of right and the judge loses jurisdiction except to grant the change, without any inquiry into the facts. Erbaugh v. People, 57 Colo. 48, 140 P. 188 (1914).

When it is sought to remove the judge because of his prejudice, the law-making power of our state has not deemed it proper to vest in such judge any discretion in the premises, and the judge whose competency is so questioned can only pronounce the judgment of the law. He cannot sit in judgment upon that which directly concerns himself. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915); People ex rel. Bennet v. District Court, 84 Colo. 367, 270 P. 663 (1928).

If the motion for disqualification be sufficient in form, and whether the allegations therein contained be in fact true or false, if they be set forth as facts they must be so accepted, and the judge may perform no further duty than that of entering an order of disqualification. He may not pass upon the facts. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

The trial judge has no discretion in the matter of recusing himself upon finding the affidavits sufficient under the rule to allege prejudice. He immediately loses all jurisdiction in the matter except to grant the change. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977).

Review of decision on motion. Should the trial court conclude that the motion and affidavits in support of change of judge are insufficient to require the change, and a reviewing or superior tribunal find the contrary, the question upon which the two tribunals have differed is of law, not of fact. Therefore, the finding of the trial court in such case can have no bearing upon the issue when presented to a higher tribunal. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

Motion held sufficient. Motion for disqualification of respondent judge with request that a substitute judge be named was sufficient where petitioner had entered a plea of guilty before the respondent judge who then imposed sentence on the petitioner and on appeal petitioner's guilty plea was vacated but on remand the case was again assigned to the respondent judge. Golden v. District Court, 186 Colo. 300, 527 P.2d 60 (1974).

ARTICLE 7

Separate Trial - Arraignment - Plea Agreements - Deferred Prosecution and Deferred Sentencing

PART 1

SEPARATE TRIAL - ALIBI NOTICE

16-7-101. Separate trial of joint defendants.

16-7-102. Required notice of defense of alibi.

PART 2

ARRAIGNMENT

16-7-201. Place of arraignment.

16-7-202. Presence of defendant.

16-7-203. Irregularity of arraignment.

16-7-204. Procedures on arraignment.

16-7-205. Pleas authorized on arraignment.

16-7-206. Guilty pleas - procedure and effect.

16-7-207. Court's duty to inform on first appearance in court and on pleas of guilty.

16-7-207.5. Court's duty to inform defendants with current or prior military service on first appearance in court and on pleas of guilty.

16-7-208. Failure or refusal to plead.

PART 3

PLEA DISCUSSIONS AND PLEA AGREEMENTS

16-7-301. Propriety of plea discussions and plea agreements.

16-7-302. Responsibilities of the trial judge with respect to plea discussions and agreements.

16-7-303. Fact of discussion and agreement not admissible.

16-7-304. Charges for bad checks.

PART 4

DEFERRED PROSECUTION AND DEFERRED SENTENCING

16-7-401. Deferred prosecution. (Repealed)

16-7-402. Counseling or treatment for alcohol or drug abuse. (Repealed)

16-7-403. Deferred sentencing of defendant. (Repealed)

16-7-403.5. Deferred sentencing - mentally ill defendants charged with certain misdemeanors - demonstration program - repeal. (Repealed)

16-7-403.7. Deferred sentencing - drug offenders - legislative declaration - demonstration program - repeal. (Repealed)

16-7-404. Charges for bad checks.

PART 1

SEPARATE TRIAL - ALIBI NOTICE