Metropolitan News-Enterprise


Tuesday, October 3, 2023


Page 3


Court of Appeal:

Remand for New Hearing on Petition for Resentencing Doesn’t Entail ‘New Trial’

Opinion Says Judge Who Denied Petition, Was Reversed, Cannot Be Challenged Under CCP §170.6 on Remand


By a MetNews Staff Writer


The Sixth District Court of Appeal has held where it sends a case back to the trial court for a fresh look at an inmate’s petition for resentencing, there’s no right to a peremptory challenge to the judge who previously denied the petition.

Miguel Angel Sandoval, who was convicted in 2009 of second-degree murder, did not want Santa Clara Superior Court Judge Andrea E. Flint to preside over a new hearing on his petition for a resentencing under Penal Code §1172.6. His petition—on the ground that the conviction was under a now-repudiated theory of imputed malice—was denied by her in 2019 and the Court of Appeal in 2022 reversed and remanded for a new hearing.

Sandoval filed a peremptory challenge under Code of Civil Procedure §170.6 which Flint denied as untimely because proceedings had already taken place before her, and the inmate sought a writ, contending that §170.6(a)(2) applies.

It says that a disqualification motion may be brought “following reversal on appeal of a trial court’s decision…if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.”

Bamattre-Manoukian’s Opinion

The Court of Appeal denied the writ petition on Friday. Acting Presiding Justice Patricia Bamattre-Manoukian declared:

“We conclude that such a remand does not constitute a ‘new trial’ for purposes of section 170.6(a)(2).”

Friday’s action marked the second time the Sixth District considered Sandoval’s writ petition. Last Jan. 19, it denied it summarily.

The California Supreme Court on Jan. 24 stayed proceedings in the case and on March 15 granted review and said:

“The matter is transferred to the Court of Appeal, Sixth Appellate District, with directions to vacate its order denying the petition for writ of mandate and to issue an order to show cause why petitioner is not entitled to the relief requested.”

Supreme Court Precedent

The Sixth District complied. Although the Supreme Court evinced a leaning toward the view that Sandoval is entitled to relief, Bamattre-Manoukian, in concluding that he is not, found that her court is bound by the Supreme Court’s 2003 decision in Peracchi v. Superior Court. There, then-Chief Justice Ronald George said:

“We conclude that the language of section 170.6, subdivision (2) does not permit a challenge when, following such a remand, the sole task left for the trial court is to resentence the defendant. We reach this conclusion because of the meaning of the statutory term “new trial” in the context of criminal proceedings, and because of the nature of sentencing hearings.”

Sandoval argued that notwithstanding Peracchi, a hearing on a resentencing petition is a “trial” in the sense that “an evidentiary hearing guided by rules of evidence, with a burden of proof placed on one party, and presided over by a trier of fact vested with exclusive power to assign weight to all evidence admitted to the rules applicable to this particular type of hearing.”

Not Persuaded

Bamattre-Manoukian said:

“We are not persuaded by Sandoval’s argument. Assuming a Penal Code section 1172.6 proceeding is a “special proceeding of a criminal nature” as argued by Sandoval, he fails to provide legal authority establishing that a Penal Code section 1172.6 evidentiary hearing nevertheless constitutes a ‘trial’ within the meaning of section 170.6(a)(2).”

Sandoval was initially sentenced to prison term of 40 years to life,

The case is Sandoval v. Superior Court, H050633.


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