Estrada v. Superior Court

ORIGINAL PROCEEDINGS in mandate. No. YA076269 Scott T. Millington, Judge. Petition denied.

The Law Offices of Stein and Markus, Joseph A. Markus, Andrew M. Stein, Joseph E. Markus and Brentford Ferreira for Petitioner.

No appearance for Respondent.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Thomas C. Hsieh and Daniel C. Chang, Deputy Attorneys General, for Real Party in Interest.

ZUKIN, J.

INTRODUCTION

The Code of Civil Procedure^[1] provides that on remand "following reversal on appeal of a trial court's final judgment," a party is entitled to a peremptory challenge "if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter." (§ 170.6, subd. (a)(2).) We must decide whether a party who obtains a reversal of an order denying a petition for resentencing under Penal Code section 1170.95 (now § 1172.6)^[2] is entitled to a postappeal peremptory challenge of the judge who denied the petition.

We hold that the hearing required in Penal Code section 1172.6, subdivision (d)(3), after reversal and remand is not a "new trial" within the meaning of section 170.6, subdivision (a)(2). Therefore, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Judge Scott T. Millington presided over Erica Estrada's criminal trial and the subsequent petition for resentencing.

A. Underlying Conviction

In 2013, a jury convicted Estrada of felony murder and found true a robbery-murder allegation under Penal Code section 190.2 (the special

circumstance statute). During the pendency of her direct appeal, our Supreme Court clarified the meaning of the special circumstance statute in People v. Banks (2015) 61 Cal.4th 788 (Banks). This court affirmed the judgment, holding that the special circumstance finding was supported by substantial evidence under Banks. (People v. Gonzalez (2016) 246 Cal.App.4th 1358 (Gonzalez I).) The Supreme Court then granted review on an issue immaterial to this appeal and affirmed. (People v. Gonzalez (2018) 5 Cal.5th 186 (Gonzalez II).)

B. Petition for Resentencing

After the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), which narrowed the felony murder rule, Estrada filed a petition for resentencing under Penal Code 1172.6, alleging she was not guilty of murder in light of SB 1437. Without issuing an order to show cause, the trial court denied the petition, reasoning that (1) the robbery-murder special circumstance finding precluded relief as a matter of law, and (2) although some cases had held that a pre-Banks special circumstance finding alone could not preclude relief under Penal Code section 1172.6, those cases were inapposite in light of the holding in Gonzalez I that the special circumstance finding was supported by substantial evidence under Banks.

On appeal, this court held that the trial court erred in denying Estrada's petition without issuing an order to show cause. (People v. Estrada (May 17, 2022, B312352) [nonpub. opn.].) This court explained that neither the jury's pre-Banks special circumstance finding nor the prior appellate opinion in Gonzalez refuted, as a matter of law, defendant's allegations that she was not a major participant in the robbery and did not act with reckless indifference to human life within the meaning of the special circumstance

statute as clarified in Banks. This court further concluded the error was not harmless regardless of whether the trial record contains substantial evidence under Banks, as a finding of substantial evidence of her guilt under a still-valid theory of murder is insufficient to render her ineligible for resentencing under Penal Code section 1172.6. Accordingly, this court reversed the order denying Estrada's petition and remanded the matter to the trial court with directions to issue an order to show cause and proceed in accordance with Penal Code section 1172.6.

C. Peremptory Challenge

After remittitur issued, Estrada was notified that the matter had been assigned back to Judge Millington. Estrada filed a peremptory challenge to disqualify him. The People filed a response, and then both parties filed supplemental briefs. Judge Millington denied the peremptory challenge, finding that the hearing required in Penal Code section 1172.6, subdivision (d)(3) (subject hearing) does not constitute a "new trial" within the meaning of section 170.6, subdivision (a)(2). The court then found "a prima facie showing [had] been made based upon the appellate court decision" and issued an order to show cause.

D. Writ Proceedings

Estrada filed a petition for writ of mandate challenging the trial court's denial of her peremptory challenge. This court denied the petition for failure to demonstrate a prima facie case entitling her to extraordinary relief. After Estrada filed a petition to review, our Supreme Court stayed all further proceedings pending its review. The court ultimately granted the petition and transferred the matter back to this court with directions to vacate our

order denying the petition for writ of mandate and to issue an order to show cause. The stay previously issued was to remain in effect pending further court order.

This court vacated its prior order and issued an order to show cause pursuant to our Supreme Court's directive. The People filed a return. No reply brief was filed by Estrada.

DISCUSSION

Estrada contends that the trial court erred in denying the peremptory challenge because the subsequent lower court proceeding, specifically the subject hearing, constitutes a "new trial" within the meaning of section 170.6, subdivision (a)(2). In response, the Attorney General contends the plain language of Penal Code section 1172.6 bars a peremptory challenge. In any event, the subject hearing is not a "new trial."

A. Overview of Relevant Law

1. Peremptory Challenge

Section 170.6 "'provides in substance that any party or attorney to a civil or criminal action may make an oral or written motion to disqualify the assigned judge...