Estrada v. Superior Court of L. A. Cnty.

93 Cal.App.5th 915

311 Cal.Rptr.3d 449

Erica ESTRADA, Petitioner,

v.The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

The People, Real Party in Interest.

B325769

Court of Appeal, Second District, Division 4, California.

Filed July 21, 2023

The Law Offices of Stein and Markus, Joseph A. Markus, Los Angeles, Andrew M. Stein, Bellflower, Joseph E. Markus and Brentford Ferreira, Los Angeles, 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 Procedure¹ 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, 189 Cal.Rptr.3d 208, 351 P.3d 330 ( 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, 202 Cal.Rptr.3d 26 ( 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, 233 Cal.Rptr.3d 791, 418 P.3d 841 ( 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, 2022 WL 1553723) [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, supported by an affidavit that the judge is prejudiced against such party or attorney or the interest thereof so that the affiant cannot or believes he [or she] cannot have an impartial trial.... [T]here are strict limits on the timing and number of such motions; but if the motion is timely and in proper form, the judge must recuse himself [or herself] without further proof and the case must be reassigned to another judge.’ " ( Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1252, 135 Cal.Rptr.2d 639, 70 P.3d 1054 ( Peracchi ).) "[T]he statute reasonably serves the Legislature's evident purpose of ‘maintaining the appearance as well as the fact of impartiality in the judicial system." ( Ibid. )

"Historically, a challenge could not be filed for the first time after a reviewing court remanded the matter to the trial court. In 1985, however, the Legislature amended section 170.6 to add the following language: ‘A motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.’ ( § 170.6, subd. [(a)](2).)" ( Peracchi, supra, 30 Cal.4th at p. 1249, 135 Cal.Rptr.2d 639, 70 P.3d 1054, italics added.) This provision was included " ‘ "to address the ‘concern ... that a judge who had been reversed might prove to be biased against the party who successfully appealed the judge's erroneous ruling at the original trial.’ " ’ ( Paterno v. Superior Court (2004) 123 Cal.App.4th 548, 556, 20 Cal.Rptr.3d 282.)" ( Mendoza v. Superior Court (2021) 65 Cal.App.5th 988, 996, 280 Cal.Rptr.3d 462.) Section 170.6 does not define the term "new trial."

2. Petition for Resentencing

Effective January 1, 2019, the Legislature enacted SB 1437, "which made significant changes to the scope of murder liability for those who were neither the actual killers nor intended to kill anyone, including certain individuals formerly subject to punishment on a felony-murder theory." ( People v. Strong (2022) 13 Cal.5th 698, 707, 296 Cal.Rptr.3d 686, 514 P.3d 265 ( Strong ).)

SB 1437 "also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended." ( Strong, supra, 13 Cal.5th at p. 708, 296 Cal.Rptr.3d 686, 514 P.3d 265 ; People v. Gentile (2020) 10 Cal.5th 830, 843, 272 Cal.Rptr.3d 814, 477 P.3d 539, abrogated in part on another ground in Stats. 2021, ch. 551, § 2.) Under newly enacted Penal Code section 1172.6, the process begins with filing a petition with the original sentencing judge, if available. ( Pen. Code, § 1172.6, subd. (b)(1).) The petition must contain a declaration that all requirements for eligibility are met, including "[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] [s]ection 188 or 189 made effective January 1, 2019." ( Pen. Code, § 1172.6 subd. (a)(3).)

If a petitioner makes a prima facie showing that he or she is entitled to relief, the trial court must issue an order to show cause and hold a hearing "to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence." ( Pen. Code, § 1172.6, subd. (d)(1).)

"At the [subject] hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution...