100 Cal.App.5th 778
Cal. Ct. App.2024Background
- Eddie Gomez, Jr. was charged and pleaded guilty to attempted murder and enhancements, with sentencing before Judge Menninger.
- Gomez later filed a Penal Code § 1172.6 petition seeking resentencing based on changes in California law regarding murder liability.
- After filing the resentencing petition, Gomez tried to disqualify Judge Menninger via a peremptory challenge under Code of Civil Procedure § 170.6.
- The peremptory challenge was denied by Judge Fish on the grounds that it was untimely.
- Gomez petitioned for a writ of mandate, arguing his motion was timely as applied to his resentencing proceeding.
- The Court of Appeal denied the petition, holding the peremptory challenge was untimely because the resentencing hearing was a continuation of the earlier action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a § 170.6 peremptory challenge was timely in a § 1172.6 resentencing proceeding | Challenge was timely; resentencing is a new special proceeding | Challenge was untimely; resentencing is continuation of original action | Challenge was untimely; original judge must preside unless unavailable |
| Whether § 1172.6 is a special proceeding permitting judge disqualification | Yes; it's a collateral proceeding distinct from the earlier plea and sentence | No; it's a continuation and intertwined with prior adjudication | It is a special proceeding, but here it's a continuation of earlier action |
| Whether the 'same judge rule' in § 1172.6 limits § 170.6 right | The rule does not override the right to peremptory challenge | The same judge rule is an implied exception, barring judge shopping | Same judge rule bars peremptory challenge in these circumstances |
| Applicability of precedent concerning plea hearings v. trials for § 170.6 timing | Acceptance of plea does not involve contested factual issues | Acceptance of plea and sentencing is equivalent to a trial for timing | Acceptance of plea is equivalent to trial; challenge must be before plea |
Key Cases Cited
- Maas v. Superior Court, 1 Cal.5th 962 (Cal. 2016) (sets limits on peremptory challenge in postjudgment proceedings; special proceeding continuations)
- Peracchi v. Superior Court, 30 Cal.4th 1245 (Cal. 2003) (resentencing should, in general, be before same judge who imposed original sentence)
- People v. Lewis, 11 Cal.5th 952 (Cal. 2021) (section 1172.6 procedure depends on the record of conviction)
- People v. Santos, 53 Cal.App.5th 467 (Cal. Ct. App. 2020) (interprets same judge requirement in resentencing statutes)
- People v. Byron B., 98 Cal.App.3d 330 (Cal. Ct. App. 1979) (timeliness of peremptory challenge after plea acceptance)
- Smith v. Municipal Court, 71 Cal.App.3d 151 (Cal. Ct. App. 1977) (plea acceptance is functional equivalent of trial for § 170.6 purposes)
- People v. Barnfield, 52 Cal.App.3d 210 (Cal. Ct. App. 1975) (peremptory challenge after plea untimely)
- People v. Superior Court (Jimenez), 28 Cal.4th 798 (Cal. 2002) (implied exception to § 170.6 where statutes require original judge)