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Name: Bontilao v. Superior Court
Case #: H046157
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 07/24/2019

When a trial court assigns a judge for all purposes to consider a habeas petition challenging the denial of parole, the timeliness of a Code of Civil Procedure section 170.6 motion to disqualify the judge is governed by the criminal “all purpose assignment” rule. Bontilao filed a habeas petition challenging the denial of parole. His petition was initially assigned to Judge Weinstein “for all purposes,” but later reassigned to Judge Zecher “for all purposes.” Bontilao filed a section 170.6 challenge against Judge Zecher. It was denied as untimely. The Court of Appeal summarily denied Bontilao’s petition for writ of mandate. The California Supreme Court transferred the matter back to the Court of Appeal with directions to vacate its decision and to issue an order to show cause. Held: Petition for writ of mandate denied. Although section 170.6 does not explicitly reference habeas proceedings, a petitioner is entitled to peremptorily challenge the assigned judge under section 170.6 as long as all the procedural requirements of the provision have been satisfied. (Maas v. Superior Court (2016) 1 Cal.5th 962.) Section 170.6 sets forth various timeframes to assess the timeliness of a challenge to an assigned judge (including the “all purpose assignment” rule), but no published decision has addressed timeliness of section 170.6 motions in habeas proceedings. After analyzing section 170.6, its legislative history, and relevant case law, the Court of Appeal concluded the all purpose assignment rule applies in habeas proceedings. If the requirements of the all purpose assignment rule are otherwise met, the filing deadlines set forth in section 170.6, subdivision (a)(2) apply. Here, even though Bontilao’s case had been reassigned, the reassignment was “for all purposes” and the all purpose assignment rule applied. The Court of Appeal also concluded that the criminal all purpose assignment rule (which has a 10-day deadline), as opposed to the civil all purpose assignment rule (which has a 15-day deadline), applies to habeas petitions. Bontilao’s motion was untimely under either the criminal or civil rule. [Editor’s Note: The court noted that the Legislature may wish to consider revisions to section 170.6 to explicitly address its application to petitions for writs of habeas corpus and other forms of postconviction relief.]

The full opinion is available on the court’s website here: