NANCY MICHELLE MENDOZA, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
D078566
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 6/23/21
CERTIFIED FOR PUBLICATION; (San Diego County Super. Ct. No. H22844)
ORIGINAL PROCEEDINGS in mandate. Eugenia E. Eyherabide, Judge. Petition denied.
Elizabeth E. Comeau and Carl Fabian for Petitioner.
No appearance for Respondent.
Summer Stephan, District Attorney, Mark A. Amador, Linh Lam and Martin E. Doyle, Deputy District Attorneys, for Real Party in Interest.
A superior court judge summarily denied a petition for writ of habeas corpus in which petitioner Nancy Michelle Mendoza1 claimed she received ineffective assistance of counsel at her sentencing hearing. The California Supreme Court later issued an order to show cause (OSC) returnable before the superior court on the same claim. The case was then assigned to the same judge who previously had denied Mendoza‘s petition. More than 40 days later, Mendoza filed a peremptory challenge to the judge under
We reject Mendoza‘s contention that the 60-day deadline applies. Even assuming the reversal on appeal condition is satisfied, the new trial condition is not.
Instead, we conclude the 10-day all purpose assignment deadline applies. (See Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 998-1000 (Bontilao) [holding the 10-day deadline for all purpose assignments of criminal cases (rather than the 15-day deadline for civil cases) applies in habeas corpus proceedings]; People v. Superior Court (Reagan) (2020) 54 Cal.App.5th 766, 774, fn. 3 (Reagan) [following Bontilao].) Applying this deadline, the superior court properly denied Mendoza‘s challenge as untimely.
Accordingly, we deny Mendoza‘s petition for writ of mandate.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Mendoza‘s Underlying Convictions and Sentence
In 2007, when she was 18, Mendoza participated in a kidnap-for-ransom scheme with a Mexican drug cartel. She was ultimately convicted in 2012 of
The trial court (Judge John S. Einhorn) sentenced Mendoza to (1) a mandatory LWOP term for the kidnapping count with the attendant bodily harm enhancement finding, plus 10 years for the firearm enhancement; (2) life with the possibility of parole, plus 10 years for the firearm enhancement on the other kidnapping count; and (3) a stayed (
Mendoza‘s defense counsel argued at the sentencing hearing that the LWOP sentence was cruel and unusual, but did not ask the court to exercise its discretion under
B. Direct Appeal
Mendoza appealed her convictions to our court, raising more than 25 contentions, including that her sentencing counsel (Elizabeth Comeau and Merle Schneidewind) rendered ineffective assistance by failing to request that the trial court exercise its discretion to strike the bodily harm enhancement. (People v. Moreno (Cal. Ct. App., Jan. 27, 2016, No. D064526) 2016 WL 336314, at pp. *1, *46 (Moreno)).4 Comeau, who also represented Mendoza in the appeal, acknowledged she had no tactical reason for failing to make the request, which she maintained would have been granted. (Id. at p. *46.) Our court rejected Mendoza‘s claims. (Id. at pp. *47, *49.)
Mendoza petitioned the California Supreme Court for review. The Supreme Court denied the petition, but clarified the next day that the denial was “without prejudice to filing a petition for a writ of habeas corpus in the superior court alleging ineffective assistance of counsel at sentencing.”
1. Superior Court
Mendoza filed a petition for writ of habeas corpus in the superior court raising several issues, including that her sentencing counsel rendered ineffective assistance by failing to request that the trial court strike the bodily harm enhancement.5
The sentencing judge had since retired, so Mendoza‘s petition was assigned to Judge Kenneth So, who later issued a 54-page order denying Mendoza‘s petition on the ground she failed to state a prima facie case for relief. Regarding the sentencing issue, Judge So found Mendoza had not established the prejudice prong of her ineffective assistance claim because “there is no reasonable probability that the court would have stricken the enhancement ‘in the interest of justice.’ ”
2. Court of Appeal
Mendoza (represented by attorney Comeau) filed a habeas corpus petition in this court raising 17 issues, including the claim regarding ineffective assistance at sentencing. Our court summarily denied the petition.
3. California Supreme Court
Mendoza (again rеpresented by attorney Comeau) filed a habeas corpus petition in the California Supreme Court asserting 17 grounds for relief, including the claim regarding ineffective assistance at sentencing. The court requested and received informal responses from the parties.
On November 24, 2020, the Supreme Court issued an order to “[t]he Secretary of the Department of Corrections and Rehabilitation ... to show cause before the San Diego Superior Court . . . why [Mendoza] is not entitled to relief based on her claim that trial counsel rendered ineffective assistance at sentencing by failing to seek dismissal of the
About two weeks later, on December 4, 2020, Judge So issued an order appointing the Office of Assigned Counsel (OAC) to represent Mendoza, and setting a briefing schedule on the OSC. The order stated that the “Court will not rule on the [OSC] until all briefing is complete . . . .” On December 8, the court served the order by mail on the parties, OAC, and attorney Comeau.
On December 28, 2020, OAC assigned Mendoza‘s case to attorney Comeau.6
On January 25, 2021, attorney Comeau filed on Mendoza‘s behalf a peremptory challenge of Judge So under
On February 2, 2021, Judge Eugenia Eyherabide denied Mendoza‘s peremptory challenge as untimely. Judge Eyherabide found the 60-day deadline inapplicable, reasoning the Supreme Court‘s OSC did not constitute a “reversal on appeal” because Mendoza‘s habeas corpus petition to the Supreme Court was not an appeal—it was a “separate and distinct” legal proceeding that invoked the Supreme Court‘s original jurisdiction. Judge Eyherabide did not reach whether the proceeding before Judge So would constitute “a new trial” within the meaning of
Instead, Judge Eyherabide concluded Mendoza‘s peremptory challenge was subject to the 10-day deadline applicable to criminal proceedings assigned to a judge for all purposes. (
On Mendoza‘s behalf, attorney Comeau filed the instant petition for writ of mandate seeking to vacate the superior court‘s order denying her peremptory challenge, and to disqualify Judge So. (See Daniel V. v. Superior Court (2006) 139 Cal.App.4th 28, 39 [“An order denying a peremptory challenge is not an appealable order and may be reviewed only by way of a petition for writ of mandate.“].) We requested and received informal responses from the People and Mendoza. We then issued an OSC, in response to which the People filed a formal return, and Mendoza filed a reply.
III. DISCUSSION
A. Overview of Relevant Law
1. Section 170.6
Because “the Legislature was well aware of the рotential that [
Regarding timing, “[a]s a general rule, a motion for disqualification under
” ‘Under the all-purpose assignment rule, a [S]ection 170.6 challenge to a judge must be filed within 10 days for criminal cases, or within 15 days for civil cases, after notice of the judge‘s all-purpose assignment.’ ” (Reagan, supra, 54 Cal.App.5th at p. 772; see
Alternatively,
2. Habeas Corpus
A petitioner seeking to collaterally attack his or her conviction or sentence through a habeas corpus proceeding begins by filing a verified petition in the superior court that entered the underlying judgment. (Maas, supra, 1 Cal.5th at pp. 973-974; Robinson v. Lewis (2020) 9 Cal.5th 883, 895 (Robinson).)
The court first ” ‘determine[s] whether the petition states a prima facie case for relief—that is, whether it states facts that, if true, entitle the petitioner to relief—and also whether the stated claims are for any reason procedurally barred.’ ” (Maas, supra, 1 Cal.5th at p. 974.) If “the petition fails to state a prima facie case for relief or . . . the claims are procedurally barred, the
“[I]n noncapital cases, if the superior court denies a petition for a writ of habeas corpus, the petitioner has no statutory right to appeal. Instead, the petitiоner must file a new, original petition, generally in the Court of Appeal.” (Robinson, supra, 9 Cal.5th at p. 895.) “[A] petition in the Court of Appeal is a new petition invoking that court‘s original jurisdiction.” (Id. at pp. 895-896.) “[A] Court of Appeal that considers a new petition does not directly review the superior court‘s ruling but makes its own ruling.” (Id. at p. 896.)
If the Court of Appeal denies the petition, the petitioner has two options: file a petition for discretionary review in the Supreme Court, or file “a new, original petition for a writ of habeas corpus in [the Supreme Court] invoking [that] court‘s original jurisdiction.” (Robinson, supra, 9 Cal.5th at p. 896.) In the first scenario, the Supreme Court “review[s] the Court of Appeal‘s rulings on the claims presented in the previous petition.” (Ibid.) In the second scenario, the Supreme Court “do[es] not directly review the lower courts’ rulings.” (Ibid.) “Far more petitioners file an original petition . . . than file a petition for review . . . .” (Ibid.)
An appellate court may issue an order to show cause returnable before the superior court. (In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4 (Hochberg);
B. The 60-day Deadline Following Reversal on Appeal to Conduct a New Trial Does Not Apply Here
As we will explain, we conclude a habeas corpus proceeding that raises only a claim of ineffective assistance of counsel at sentencing, and which seeks as its only remedy a resentencing hearing, is more analogous to a criminal case.
1. The Meaning of “New Trial”
Our Supreme Court in Peracchi, supra, 30 Cal.4th 1245 addressed at length the meaning of the term “new trial” for purposes of
The defendant in Peracchi appealed his convictions for reckless evasion and being a felon in possession of a firearm. (Peracchi, supra, 30 Cal.4th at p. 1249.) The Court of Appeal reversed the reckless evasion conviction, affirmed the firearm conviction, and “remanded for retrial on [the reckless evasion] count, if the prosecutor so elects, and for resentencing.” (Id. at p. 1250.) When the case was assigned on remand to the judge who had presided over the trial, the defendant sought to disqualify him under
The defendant filed a petition for a writ of mandate in the Court of Appeal seeking to disqualify the judge. (Peracchi, supra, 30 Cal.4th at p. 1250.) A
The Supreme Court disagreed with the majority‘s reasoning, and reversed. In contrast to the “quite broad[ ]” definition of “new trial” applicable in civil cases, the Peracchi court noted that the Penal Code defines the term more narrowly in criminal cases:
“The Penal Code defines a new trial as ‘a reexamination of the issue in the same Court, before another jury, after a verdict has been given.’ (
Pen. Code, § 1179 .)Penal Code section 1180 explains that ‘[t]he granting оf a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument . . . .’ ” (Peracchi, supra, 30 Cal.4th at p. 1253.)
With these narrow definitions in mind, the Peracchi court concluded a resentencing hearing does not constitute a new trial for purposes of
First, the Peracchi court observed that because of the nature of a trial “court‘s function at sentencing,” a resentencing hеaring cannot place the parties in the same position ” ‘as if no trial had been had.’ ” (Peracchi, supra, 30 Cal.4th at p. 1254, quoting
Second, the court noted that, “[a]s a matter of practice, when a reviewing court identifies error relating solely to sentencing, it ordinarily does not reverse the judgment of conviction or remand for a new trial. Rather, typically, it simply remands for resentencing.” (Peracchi, supra, 30 Cal.4th at p. 1255.) “Such a routine order remanding for resentencing does not necessarily operate even to vaсate the original sentence, let alone constitute an order for a new trial—that is, a proceeding at which ‘the parties [are] in the same position as if no trial had been had’ and in which ‘[a]ll the testimony must be produced anew.’ (
Third, the Peracchi court observed that a criminal defendant‘s constitutional trial rights are not implicated in a noncapital resentencing hearing. (Peracchi, supra, 30 Cal.4th at p. 1256.)
In light of these considerations, the Peracchi court found “no indication that . . . the Legislature . . . intended that a sentencing hearing on remand be considered a new trial” under
Thus, “[t]aking into consideration the applicable statutes, prior court practice, the function of a sentencing hearing, and the limited effect on the judgment of a reviewing court‘s order remanding for resentencing,” the Peracchi court “concluded that resentencing is not a ‘new trial’ within the meaning of the Penal Code or
2. Cases Addressing the Interplay Between Section 170.6 and Habeas Corpus
No court has yet addressed the precise issue before us, but some have addressed more generally the interplay between
In reaching this conclusion, the Maas court reasoned that if a habeas corpus proceeding falls within any of the three statutory categories of proceedings, it is either a criminal action or a special proceeding—the court did not contemplate that it might constitute a civil action. (Maas, supra, 1 Cal.5th at p. 975.) The court ruled out the criminаl action category because a “habeas corpus proceeding is . . . an independent, collateral challenge to an earlier, completed criminal prosecution.” (Ibid.)
Instead, the Maas court found that habeas corpus proceedings fall within
In Bontilao, supra, 37 Cal.App.5th 980, the Court of Appeal considered which of
Finding no pertinent legislative history, the Bontilao court thus “appl[ied] the catchall provision of
More
C. Analysis
In light of the principles addressed in Maas, Bontilao, Reagan, and Peracchi, we conclude that because the OSC relates only to a single claim of ineffective assistance of counsel at sentencing, which will at most result only in a new sentencing hearing, it does not constitute a new trial for purposes of
At a general level, we are persuaded by the fact the Maas court contemplated that a habeas corpus рroceeding would fall within
More specifically, we are persuaded that the scope of Mendoza‘s habeas corpus claim is more appropriately categorized as criminal than civil. First, the claim arises from what occurred—or, rather, what Mendoza contends should have occurred—at her original sentencing hearing. (See Bontilao, supra, 37 Cal.App.5th at p. 999 [“A criminal sentence is clearly part of a criminal case.“].)
Second, Mendoza‘s habeas corpus claim is premised on ineffective assistance of counsel. This concept applies in criminal, but not civil, cases. (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1574 [“[i]neffective assistance of counsel has no place” in a civil marital dissolution case]; Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978-979 [“the right to counsel constitutional provisions refer specifically to criminal prosecutions, and hence do not apply to civil proceedings“].)
Moreover, to establish the prejudice prong of her ineffective assistance claim in the habeas corpus proceeding, Mendoza will have to show it is reasonably probable she would have obtained a more favorable outcome at the sentencing hearing had her sentenсing counsel rendered competent assistance. (Strickland v. Washington (1984) 466 U.S. 668, 694.) This will require the court to undertake an analysis
Finally, and relatedly, if Mendoza prevails in her habeas corpus proceeding, she will obtain, at most, a resentencing hearing, which, again, does not constitute a new trial. (Peracchi, supra, 30 Cal.4th at pp. 1257-1258.)
We recognize that the Supreme Court‘s OSC does not, itself, call for a resentencing hearing. Rather, it calls only for a hearing to determine whether Mendoza is entitled to a resentencing hearing. Yet, courts applying Peracchi have held that similarly conditional hearings do not constitute a “new trial” under
For example, in Akopyan v. Superior Court (2020) 53 Cal.App.5th 1094, the Court of Appeal applied the reasoning in Peracchi to conclude that “[a] limited remand to conduct a Batson/Wheeler inquiry after trial does not constitute a ‘new trial’ under
Similarly, the court in Andrew M., supra, 43 Cal.App.5th 1116 applied the reasoning in Peracchi to conclude the conditional reversal of a juvenile defendant‘s convictions in adult criminal court and remand for a transfer hearing in juvenile court under Proposition 57 to determine whether the juvenile court would have transferred the defendant to adult criminal court did not constitute a new trial for purposes of
The Andrew M. court concluded the conditional reversal and remand for a transfer hearing was not a new trial because “[t]here is no ‘do over’ on the issues decided by the verdict.” (Andrew M., supra, 43 Cal.App.5th at p. 1126.) That is, even though the juvenile court would “exercise discretion” (id. at p. 1127), “make factual findings” (ibid.), and “consider factors similar to those at issue when the court” sentenced the defendant (ibid.), the conditional reversal and remand did not constitute a “new trial” because the parties were ” ‘not . . . in the same position as if there had been no trial’ ” and
As with the proceedings in Peracchi, Akopyan, and Andrew M., the hearing on Mendoza‘s habeas corpus petition is not a “new trial” for purposes of
Accordingly, we conclude
D. Mendoza‘s Challenge Was Untimely Under the Applicable All Purpose Assignment Rule
We instead conclude Mendoza‘s peremptory challenge is governed by
“[F]or a case аssignment to be an all purpose assignment, two prerequisites must be met. First, the method of assigning cases must ‘instantly pinpoint’ the judge whom the parties can expect to ultimately preside at trial. Second, that same judge must be expected to process the case ‘in its totality’ [citation], from the time of the assignment, thereby ‘acquiring an expertise regarding the factual and legal issues involved, which will accelerate the legal process.’ ” (Lavi, supra, 4 Cal.4th at p. 1180; see Reagan, supra, 54 Cal.App.5th at p. 773; Bontilao, supra, 37 Cal.App.5th at p. 991.)
Judge So‘s December 4, 2020 order set forth a briefing schedule to be filed with “this court,” and advised that “[t]his Court will not rule on the Order to Show Cause until all briefing is complete . . . .” In light of Judge So‘s prior involvement with Mendoza‘s habeas corpus petition, this order bearing his signature sufficiently pinpointed him as the judge who would preside over the proceeding for all purposes. (See Reagan, supra, 54 Cal.App.5th at pp. 769-770, 773 [assigned judge‘s “in-chambers order (with no parties [present])” setting a briefing schedule “instantly pinpointed him as the assigned judicial officer“];
Because the superior court served the order by mail on December 8, 2020, Mendoza‘s deadline for filing a peremptory challenge was extended by five days, to December 23, 2020. (Bontilao, supra, 37 Cal.App.5th at pp. 998-999;
Mendoza argues that although the Deсember 4, 2020 order purported to appoint OAC to represent her, and although OAC assigned the case to attorney Comeau on December 28, 2020, the clock should not have begun to run on the deadline for filing a peremptory challenge until the court formally appointed Comeau or Comeau formally appeared in the case. (
Moreover, the Reagan cоurt rejected a substantially similar argument raised by the district attorney in that case. (Reagan, supra, 54 Cal.App.5th at pp. 774-775id. at p. 775), in which the “proper petitioner and respondent will be well known from the face of the petition (and prior criminal proceedings)” (id. at pp. 774-775), “timeliness is to be measured from court-initiated notice of an all purpose assignment and, only where such notice has not been given, from ten days after the People‘s appearance” (id. at p. 775).
Mendoza does not claim she did not receive actual notice of the court‘s order. And because the superior court‘s proof of service indicates the court served the order by mail on Mendoza, and on Comeau at the address listed on her briefing in this matter, such a claim would be dubious.
Instead, Mendoza argues Judge So‘s order was a “nullity” because he issued it before the Supreme Court‘s OSC became final and, thus, Judge So lacked jurisdiction to file any orders. In support, Mendoza cites the general rule that a Supreme Court decision is not final until 30 days after filing. (
Finally, even using the date the Supreme Court‘s OSC became final, Mendoza‘s peremptory challenge would still have been more than two weeks late. That is, the OSC became final on December 24, 2020 (i.e., 30 days after the court issued the OSC on November 24, 2020), and Mendoza‘s challenge would thus have been due January 8, 2021 (the 10-day all purpose assignment period, plus five days for servicе by mail). She did not file her challenge, however, until January 25—17 days after that deadline had passed.
Accordingly, Mendoza‘s peremptory challenge was untimely under the applicable all purpose assignment deadline.
DISPOSITION
The petition is denied. The stay of proceedings issued by this court on February 22, 2021 is vacated.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.