Gomez v. Super. Ct. of Orange Cty.

319 Cal.Rptr.3d 324

Eddie GOMEZ, Jr., Petitioner,

v.The SUPERIOR COURT OF ORANGE COUNTY, Respondent;

The People, Real Party in Interest.

G062526

Court of Appeal, Fourth District, Division 3.

Filed March 15, 2024

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Petition denied. (Super. Ct. No. 17NF0939)

Martin Schwarz, Public Defender, Adam Vining, Assistant Public Defender, and Alexander Bartel, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Real Party in Interest.

OPINION

O’LEARY, P. J.

Eddie Gomez, Jr., filed a petition for writ of mandate challenging the trial judge’s denial of his Code of Civil Procedure section 170.6 (section 170.6) motion. Gomez argues the trial judge, Jonathan S. Fish, erred by denying his peremptory challenge because the motion was timely and proper to disqualify Judge Kimberly Menninger from considering his Penal Code section 1172.6¹ (section 1172.6) petition. Because we conclude the peremptory challenge was untimely, we need not consider Gomez’s other contention. We deny the petition.

FACTS

An information charged Gomez and his co-defendant with two counts of premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)), one count of street terrorism (Pen. Code, § 186.22, subd. (a)), and various enhancements. Gomez appeared for his arraignment in department C5 before Judge Menninger. He pleaded guilty to one count of attempted murder and two enhancements. In his written factual basis for the plea, Gomez admitted that acting with the intent to kill and on behalf of a criminal street gang, he tried to kill the victim with a firearm.

Pursuant to the plea agreement, Judge Menninger dismissed the remaining counts and enhancements and sentenced Gomez to 11 years in prison.

Gomez filed a petition for resentencing pursuant to section 1172.6. Later, Gomez filed a peremptory challenge seeking to disqualify Judge Menninger from ruling on his resentencing petition (§ 170.6).

Judge Fish denied the peremptory challenge, explaining, "The motion is untimely as Judge Menninger was the sentencing judge in a calendar court; and [section] 1172.6[, subdivision] (b)(1) requires the sentencing judge to resentence."

Gomez filed a petition for writ of mandate in this court. We denied the petition. Gomez filed a petition for review with the California Supreme Court. That court granted review and transferred the matter to this court with instructions to vacate our order denying the petition and issue an order to show cause. (Gomez v. Superior Court, rev. granted July 12, 2023, S279842.) We vacated our prior order denying Gomez’s petition for a writ of mandate and issued an order to show cause. The Attorney General filed a return, and Gomez filed a traverse.

DISCUSSION

Section 1172.6, subdivision (a), provides a postjudgment procedure for individuals convicted of murder, attempted murder, or manslaughter who could no longer be convicted of those crimes to retroactively seek resentencing relief. (People v. Lewis (2021) 11 Cal.5th 952, 959, 281 Cal.Rptr.3d 521, 491 P.3d 309.) A person must file a petition for resentencing "with the court that sentenced the petitioner." (§ 1172.6, subds. (a), (b)(1), italics added.) Section 1172.6, subdivision (b)(1), provides, "If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition." (Italics added.) Courts have referred to this provision as the " ‘same judge rule’ " and interpreted it to mean the same judge who sentenced the petitioner must preside over the resentencing proceedings, unless that judge is unavailable. (Torres v. Superior Court (2023) 94 Cal.App.5th 497, 517, 311 Cal. Rptr.3d 885 (Torres); Estrada v. Superior Court (2023) 93 Cal.App.5th 915, 922, 311 Cal.Rptr.3d 449; People v. Santos (2020) 53 Cal.App.5th 467, 472, 267 Cal.Rptr.3d 628.)

This is consistent with the general rule that when a sentencing error mandates reversal in criminal matters, we routinely remand those cases for resentencing to the same trial judge who imposed the original sentence. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1254, 1256, 1261, 135 Cal.Rptr.2d 639, 70 P.3d 1054 (Peracchi).) It is also consistent with recent resentencing legislation for certain drug-and theft-related offenses. (Pen. Code, § 1170.18, subd. (k) ["If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application"].) Additionally, "in some cases, an express or implied term of a plea agreement may dictate that resentencing take place before the judge who accepted the plea. [Citation.]" (Peracchi, supra, 30 Cal.4th at p. 1254, 135 Cal.Rptr.2d 639, 70 P.3d 1054.)

[1, 2] Section 170.6, subdivision (a)(1), states in relevant part that "a judge … shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established as provided in this section that the judge … is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding." Section 170.6, subdivision (a)(2), permits the disqualification of a judge based upon the mere belief of a litigant in a sworn statement that he cannot have a fair trial before the assigned judge. "When a litigant has met the requirements of section 170.6, disqualification of the judge is mandatory, without any requirement of proof of facts showing that the judge is actually prejudiced. [Citations.]" (Maas v. Superior Court (2016) 1 Cal.5th 962, 972, 209 Cal.Rptr.3d 571, 383 P.3d 637 (Maas), first italics added.) A litigant may file a section 170.6 motion in a postjudgment proceeding. (Maas, supra, 1 Cal.5th at p. 975, 209 Cal.Rptr.3d 571, 383 P.3d 637 [habeas petition].)

[3, 4] We review de novo a trial court’s denial of a peremptory challenge under section 170.6. (Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987-988, 250 Cal.Rptr.3d 535.) "Because the trial court exercises no discretion when considering a section 170.6 motion, it is ‘appropriate to review a decision granting or denying a peremptory challenge under section 170.6 as an error of law.’ [Citation.]" (Ibid.)

Section 170.6, subdivision (a)(2), states a peremptory challenge may be made at any time before trial or hearing begins, but provides three exceptions that require earlier filing (the 10-day/5-day rule, the "master calendar" rule, or the "all purpose assignment" rule). That subdivision provides the following: "If the motion is directed to a hearing, other than the trial of a cause, the motion shall be made not later than the commencement of the hearing…. The fact that a judge, court commissioner, or referee has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion prior to trial, and not involving a determination of contested fact issues relating to the merits, shall not preclude the later making of the motion provided for in this paragraph at the time and in the manner herein provided." (§ 170.6, subd. (a)(2).)

In the plea context, "Where sentencing is conducted by the same judge who accepts the plea, a motion to disqualify must be made before the plea bargain is accepted—otherwise the motion is untimely." (Lyons v. Superior Court, (1977) 73 Cal. App.3d 625, 628, 140 Cal.Rptr. 826 (Lyons); People v. Byron B. (1979) 98 Cal. App.3d 330, 336-337, 159 Cal.Rptr. 430 [peremptory challenge untimely after judge accepts plea]; Smith v. Municipal Court (1977) 71 Cal.App.3d 151, 153, 139 Cal.Rptr. 121 (Smith) [same]; see People v. Barnfield (1975) 52 Cal.App.3d 210, 215, 123 Cal.Rptr. 859 (Barnfield).)

Gomez did not peremptorily challenge Judge Menninger before she accepted his guilty plea. Thus, Gomez’s peremptory challenge at issue here was untimely. Nonetheless, Gomez argues a section 1172.6 petition is a special proceeding where he may peremptorily challenge the trial judge. Maas is instructive.

In Maas, our Supreme Court addressed the issue of whether a party may peremptorily challenge the judge assigned to assess and rule on a petition for writ of habeas corpus at the initial stage of the process before an order to show cause has been issued. (Maas, supra, 1 Cal.5th at p. 970, 209 Cal.Rptr.3d 571, 383 P.3d 637.) Explaining a party may file a peremptory challenge in an "action" or "special proceeding" (§ 170.6, subd. (a)(1)), and noting the statute did not define them, the court found guidance in other provisions of the Code of Civil Procedure. (Maas, supra, 1 Cal.5th at p. 975, 209 Cal.Rptr.3d 571, 383 P.3d 637.) From those provisions, the court reasoned a habeas corpus proceeding is not a criminal action but instead "an independent, collateral challenge to an earlier, completed criminal prosecution." (Ibid.) The court thus concluded a habeas corpus proceeding is a "special proceeding" where at the prima facie stage the judge decides questions of law. (Id. at pp. 975-977, 209 Cal.Rptr.3d 571, 383 P.3d 637.)

The Maas court explained there are limitations on a party’s right to peremptorily challenge a trial judge. (Maas, supra, 1 Cal.5th at pp. 978-979, 209 Cal.Rptr.3d 571, 383 P.3d 637.) In addition to the procedural requirements, i.e., duly presented motion and filed statement of prejudice, timely, and one motion per side, the court stated that case law has established other limitations. (Ibid.) The court specified one of those limitations. "In some situations, that is, when a second action or special proceeding ‘involves "substantially the same issues" ’ and ‘ "matters necessarily relevant and material to the issues" ’ in the...