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Name: Estrada v. Superior Court (2023) 93 Cal.App.5th 915
Case #: B325769
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 07/21/2023

The hearing required in Penal Code section 1172.6(d)(3) after reversal and remand is not a “new trial” under Code of Civil Procedure section 170.6, and therefore the petitioner is not entitled to a postappeal peremptory challenge of the judge who originally denied the petition. In 2013, a jury convicted Estrada of felony murder and found true a robbery-murder special circumstance. Estrada later filed a petition for resentencing under section 1172.6. The trial court denied the petition. The Court of Appeal remanded with directions to issue an order to show cause and proceed in accordance with section 1172.6. After remittitur issued, Estrada filed a peremptory challenge to disqualify the superior court judge. The judge denied the peremptory challenge, and Estrada filed a petition for writ of mandate challenging the denial. Held: Petition denied. 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).) A resentencing hearing does not constitute a new trial for purposes of section 170.6. The hearing required in section 1172.6(d)(3), after reversal and remand, remains a resentencing procedure. The parties are not placed in the same position as if no trial had occurred. Therefore, a party who obtains such a reversal under section 1172.6 is not entitled to a peremptory challenge under section 170.6.