65 Cal.App.5th 988
Cal. Ct. App.2021Background
- Mendoza was convicted of kidnapping-related offenses and received a life-without-parole (LWOP) sentence based on a bodily-harm enhancement; counsel at sentencing did not ask the court to strike that enhancement under Penal Code § 1385.
- On direct appeal the conviction was affirmed; the California Supreme Court denied review but invited Mendoza to file a habeas petition in superior court alleging ineffective assistance at sentencing.
- Mendoza filed a superior-court habeas petition; Judge Kenneth So summarily denied it. Mendoza sought relief in the Courts of Appeal and then filed an original habeas petition in the California Supreme Court.
- The Supreme Court issued an order to show cause (OSC) returning the matter to the San Diego Superior Court for further proceedings on the ineffective-assistance sentencing claim; the superior-court matter was assigned back to Judge So.
- More than 40 days after assignment, Mendoza (through counsel Comeau) filed a peremptory challenge under Code Civ. Proc. § 170.6; a different superior-court judge denied the challenge as untimely, applying the 10-day all-purpose assignment deadline for criminal matters.
- Mendoza petitioned this Court for writ of mandate to vacate the denial and disqualify Judge So; the Court held the 60-day “reversal on appeal / new trial” exception did not apply and that the 10-day all-purpose deadline governed, so the challenge was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which § 170.6 timing rule governs Mendoza's peremptory challenge: the 60-day reversal-on-appeal/new-trial exception, or the 10-day all-purpose assignment rule? | 60-day applies because the Supreme Court OSC was effectively a reversal/remand for reexamination/new trial, so Mendoza had 60 days to challenge. | The OSC and ensuing habeas proceedings do not constitute a "new trial;" habeas matters here are analogous to criminal proceedings and thus the 10-day all-purpose deadline applies. | 60-day exception does not apply; 10-day all-purpose assignment rule governs. Challenge was untimely. |
| Did the Supreme Court’s OSC count as a "reversal on appeal" that triggers the 60-day exception? | OSC is functionally a reversal/remand warranting the longer deadline. | OSC issues under the Court’s original jurisdiction and do not necessarily amount to a reversal on appeal. | Court assumed, without deciding, that reversal might be satisfied but resolved the case on the separate ‘‘new trial’’ requirement. |
| Does a habeas-driven resentencing hearing (or hearing to determine entitlement to resentencing) qualify as a "new trial" under § 170.6(a)(2)? | Yes — the remand reexamines the merits and could lead to resentencing, so it should be treated as a new trial for § 170.6 purposes. | No — Peracchi and the Penal Code treat "new trial" narrowly in criminal contexts; resentencing or conditional remands are not new trials. | A hearing limited to entitlement to resentencing (and a resentencing itself) is not a "new trial" under § 170.6. |
| When does the 10-day all-purpose assignment clock start for habeas matters: upon court notice of assignment or upon counsel’s appearance/appointment? | Clock should start upon formal appointment or counsel’s appearance (December 28 assignment to counsel). | Timeliness is measured from court-initiated notice of all-purpose assignment; if no court notice, then from respondent’s appearance. | Measured from the court’s notice of all-purpose assignment (with a 5-day mail-service extension); Mendoza filed after the deadline. |
Key Cases Cited
- Peracchi v. Superior Court, 30 Cal.4th 1245 (sentencing/resentencing is not a "new trial" for § 170.6 purposes)
- Maas v. Superior Court, 1 Cal.5th 962 (habeas corpus is a "special proceeding" under § 170.6)
- Bontilao v. Superior Court, 37 Cal.App.5th 980 (10-day criminal all-purpose deadline applies to habeas practice analogy)
- People v. Superior Court (Reagan), 54 Cal.App.5th 766 (follows Bontilao applying criminal all-purpose rule to habeas)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard invoked in sentencing-context habeas claims)
- Andrew M. v. Superior Court, 43 Cal.App.5th 1116 (conditional remands for limited hearings do not constitute a "new trial")
- Akopyan v. Superior Court, 53 Cal.App.5th 1094 (limited remand for a Batson/Wheeler inquiry is not a "new trial")
- Robinson v. Lewis, 9 Cal.5th 883 (original petitions in appellate courts and procedure for collateral habeas review)