Peracchi v. the Super. Ct. of Fresno County

JAMES PERACCHI, Petitioner v THE SUPERIOR COURT OF FRESNO COUNTY, Respondent

THE PEOPLE, Real Party in Interest

F038251

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Filed 12/6/01

(Fresno Co. Super.Ct. No. 571767-3)

ORIGINAL PROCEEDINGS; petition for writ of mandate/prohibition. Lawrence Jones, Judge.

David A. Gottlieb for Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson, Anthony L. Dicce and Janine R. Busch, Deputy Attorneys General, for Real Party in Interest.

CERTIFIED FOR PUBLICATION

OPINION

Cornell, J.

Petitioner challenges the denial of his Code of Civil Procedure¹ section 170.6, subdivision (2) motion to disqualify the trial judge following an appeal and remand for resentencing. We agree with petitioner that the trial court erred in denying the motion to disqualify the trial judge, and we will reverse.

PROCEDURAL SUMMARY

A jury convicted petitioner of one count of felony evading a peace officer and one count of ex-felon in possession of a firearm. The court found true the allegations that petitioner had suffered two prior serious felony convictions and sentenced petitioner to two 25 years to life terms. On appeal, this court reversed one of petitioner's felony convictions and "remanded for retrial on that count, if the prosecutor so elects, and for resentencing."

Petitioner was scheduled for a hearing on May 24, 2001. Approximately 10 days before the scheduled hearing, counsel for petitioner was notified that Judge Lawrence Jones, the original trial judge, was assigned to rehear this case upon remand. Petitioner thereafter filed a declaration of disqualification under Civil Code of Procedure section 170.6, subdivision (2).

The hearing commenced as scheduled on May 24, 2001. Deputy District Attorney Dennis Peterson advised the court that the People had decided not to proceed to retrial on the reversed count. Consequently, Judge Jones ruled that the section 170.6 motion was not proper and set the matter for resentencing on July 10, 2001.

On June 4, 2001, petitioner filed a petition for writ of mandate/prohibition asking this court to issue a peremptory writ of mandate or prohibition directing respondent court to vacate its order denying petitioner's motion pursuant to section 170.6, subdivision (2) and enter a new order granting the motion. On June 28, 2001, this court issued an alternative writ directing respondent to either vacate its order denying petitioner's motion to disqualify the Honorable Lawrence Jones pursuant to section 170.6, subdivision (2), and enter a new order granting the request or to show cause why the requested relief should not issue.

On July 5, 2001, respondent elected to show cause. This court then stayed the July 10, 2001, resentencing hearing.

DISCUSSION

Section 170.6, subdivision (2) provides, in pertinent part:

"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."

The right to disqualify a judge under section 170.6, is without regard to actual prejudice. (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531 (McCartney), overruled on other grounds in Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 779, fn. 18 and Doan v. Commission on Judicial Performance (1995) 11 Cal.4th 294, 325.) Good faith belief in prejudice is sufficient. (McCartney, supra, 12 Cal.3d 512.) A trial court's erroneous denial of a motion to disqualify is an abuse of discretion. (Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315.)

The trial court denied the motion for disqualification based on the People's decision not to proceed to retrial on the charge of evading a police officer. Real Party in Interest reasons in light of the strict sentencing guidelines, the task of resentencing petitioner is but a ministerial act.

In Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, the Second District Court of Appeal was confronted with the question of whether the above quoted language of section 170.6, subdivision (2) applies when a matter was remanded "'to afford defendants [petitioners] an opportunity to present evidence as to the circumstances under which the parties entered into the written partnership agreement,'" and not for a new trial. (Id. at p. 573.) The Second District noted that "[t]he amendment was 'intended to permit a party to challenge a judge who had been assigned to conduct the "new trial" of the case in which his or her decision was reversed on appeal. The term "new trial" is intended to cover situations where the case is to be re-tried and not merely remanded with instructions to perform some specific task (e.g., recalculate interest).' (Assem. Com. on Jud. Analysis of Assem. Bill No. 1213, as amended May 15, 1985.)" (Id. at p. 576.)

In finding that the application of section 170.6 applies to the facts presented, the court reasoned "[t]he respondent court rejected petitioners' affidavit pursuant to section 170.6, concluding that the section did not apply because the case was remanded for consideration of a 'limited issue.' The legislative history of the 1985 amendment suggests that the applicability of that section does not turn on the [sic] whether the issue(s) to be resolved on remand are limited, but what the court must do to resolve them. If the court's function is merely a ministerial act (such as recalculation of interest), the 1985 amendment does not apply. If, however, the court must conduct an actual retrial, even if that trial involves only one issue, the court may be disqualified upon a timely affidavit filed pursuant to section 170.6. In the case at bench, the trial court was called upon to retry the case, albeit on a single issue." (Id. at p. 576.)

In Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, 863, the Second District Court of Appeal followed Stegs and held that a remand order for resolution of factual issues related to a motion for restitution of an amount of the judgment paid by the defendant, who prevailed on appeal, called for a "new trial" within the meaning of section 170.6, subdivision (2).

The court explained: "Our remand to the trial court was not for the purpose of causing it to perform a ministerial act, such as the execution of a mathematical calculation. It was, instead, for the purpose of receiving evidence and resolving a factual issue: whether, in paying the amount of the judgment against him, Hendershot acted for himself alone or for the Shadowood Corporation. The purpose of the 1985 amendment is served by recognizing its application to this situation, in which the trial judge might be perceived as holding a bias against the party that had successfully pressed the appeal that led to reversal of the earlier judgment. That purpose would be thwarted by a construction that renders the statute inapplicable to the trial on remand." (Id. at p. 864.) The court summarized: "Finally, our construction and application of the amendment is consonant with the established rule that section 170.6, in guaranteeing a litigant the extraordinary right to disqualify a judge, should be liberally construed to effect its objects and to promote justice." (Id. at p. 865.)

At the resentencing hearing here, the judge's discretion is significant. The judge may rehear evidence regarding the appropriate sentence for petitioner and will have the opportunity to exercise his discretion in regard to such matters as striking a prior serious or violent felony. The policy behind section 170.6, to avoid possible bias by a trial judge who has been reversed on appeal, will best be served by interpreting "new trial" to encompass this resentencing.

The dissent raises valid concerns about the application of section 170.6 to all resentencings after remand. However, as discussed above, the proper approach is to focus on the function the judicial officer is to perform upon remand, rather than simply the nature of the hearing at issue. Such an approach requires a case by case analysis.

This holding is based on what decisions the trial court judge in this case is going to make on remand and not on the general nature of resentencings on remand.

DISPOSITION

Let a peremptory writ of mandate issue directing the Fresno County Superior Court to vacate its order in action number 571767-3 dated May 24, 2001, denying the motion to disqualify Judge Jones and enter a new order granting the motion.

I CONCUR: Polley, J.^*, Ardaiz, P.J.

1 All future references are to the Code of Civil Procedure unless otherwise indicated.

* Judge of the Tuolumne County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

I respectfully dissent.

Code of Civil Procedure section 170.6, subdivision (2) allows a party to make a peremptory motion to disqualify a judge "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." (Italics added.)¹ The question presented is whether a trial judge is assigned to conduct "a new trial on the matter" where, as here, the Court of Appeal has reversed one of a criminal defendant's felony convictions, "remanded for retrial on that count, if the prosecutor so elects, and for resentencing," and the prosecutor has elected not to retry the reversed count. I conclude that, under such circumstances, a remand for resentencing does not constitute a "new trial on the matter"; hence, the second paragraph of section 170.6, subdivision (2) does not apply. In my view, neither the statutory language (which was added by...