Metropolitan News-Enterprise


Thursday, June 24, 2021


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Court of Appeal:

Hearing on OSC re Habeas Corpus Petition Isn’t a ‘Trial’ for CCP §170.6 Purposes


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal declared yesterday that where an appellate court has ordered that proceedings take place in a superior court on a petition for a writ of habeas corpus, the 60-day period for filing a peremptory challenge to a judge who is to conduct a new trial following reversal does not apply.

Rather, the catch-all 10-day period for disqualifying a judge (plus five days where there is service of notice of the assignment by mail) governs, Justice Judith L. Haller said. That deadline, set forth in Code of Civil Procedure §170.6(a)(2), is applicable to “a criminal cause that has been assigned to a judge for all purposes.”

The defendant, Nancy Michelle Mendoza, contended that her challenge to San Diego Superior Court Judge Kenneth So, filed within 60 days of the assignment of the case to him following the Supreme Court’s order to show cause why a hearing should not be held on her habeas corpus petition, was timely.

Wording of Statute

Mendoza, who was convicted on kidnapping charges, cited a portion of §170.6(a)(2) that says:

“A motion under this paragraph may be made following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter….[T]he party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so. The motion shall be made within 60 days after the party or the party’s attorney has been notified of the assignment.”

So had previously denied Mendoza’s habeas corpus petition (as did the Court of Appeal).

Haller wrote:

“Assuming without deciding that the Supreme Court’s issuance of the OSC returnable before the superior court constituted a reversal on appeal, we conclude the ensuing habeas corpus proceeding does not satisfy the additional condition that the reversal be for the purpose of “conducting] a new trial on the matter.”

She said that while Mendoza’s petition “presents an issue of first impression as to whether her peremptory challenge is subject to section 170.6(a)(2)’s 60-day deadline following a ‘reversal on appeal.’ ” the California Supreme Court has provided guidance. The jurist pointed to then-Chief Justice Ronald M. George’s 2003 opinion, for a unanimous court, in Peracchi v. Superior Court.

There, it was argued that §170.6(a)(2) applied where a case had been remanded for resentencing. Rejecting the contention, George pointed out:

“As a matter of practice, when a reviewing court identifies error relating solely to sentencing, it ordinarily docs not reverse the judgment of conviction or remand for a new trial. Rather, typically, it simply remands for resentencing.”

Based on that and other factors, the chief justice said:

“[W]e conclude that resentencing is not a ‘new trial’ within the meaning of the Penal Code or Code of Civil Procedure section 170.6.”

Haller’s Reasoning

Mendoza’s habeas corpus petition alleges incompetence of counsel at her sentencing hearing. Haller noted that the Supreme Court did not order a resentencing—rather, it directed on Nov. 24 that the secretary of the Department of Corrections and Rehabilitation show cause in the San Diego Superior Court why a resentencing hearing should not be afforded.

Pointing to the applicability of Peracchi, she said that “if Mendoza prevails in her habeas corpus proceeding, she will obtain, at most, a resentencing hearing, which, again, does not constitute a new trial.”

Although habeas corpus proceeds are sometimes classified as civil in nature, Haller said the 10-day deadline for §170.6 challenges in criminal cases is applicable, explaining:

“[T]he proceedings on Mendoza’s petition are more analogous to a criminal case because she asserts quintessentially criminal law concepts (ineffective assistance of counsel and sentencing considerations) and seeks only a new sentencing hearing.”

The case is Mendoza v. Superior Court, D078566.


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