For purposes of Code of Civil Procedure section 170.6, governing the timeliness of a peremptory challenge to a superior court judge, a habeas proceeding can be a continuation of a criminal action where the issues raised are related to the criminal trial. Defendant was diagnosed with porphyria, an extremely rare and potentially fatal condition where the skin becomes extremely sensitive to sunlight and sun exposure can cause burning pain and blisters. He is currently in jail awaiting trial on charges including murder. In the criminal action, the trial court granted a series of requests for evaluation and treatment to deal with defendant’s porphyria, but denied defendant’s application for measures to protect defendant from sunlight during transportation. About a month later, defendant filed a habeas petition, alleging cruel and unusual punishment and violation of the Americans with Disabilities Act. The case was assigned to the same judge. Defendant promptly filed a peremptory challenge to that judge under section 170.6, which was denied as untimely. Defendant sought a petition for writ of mandate. Held: Petition denied. When a criminal case has been assigned to a judge for all purposes, any section 170.6 challenge must be filed within 10 days after notice of the all purpose assignment. A peremptory challenge may be untimely if the subsequent proceeding is a continuation of an earlier action. For purposes of section 170.6, a habeas proceeding can be a continuation of a criminal action—typically because they both involve overlapping issues going to guilt and/or sentencing. By contrast, here, the issues in the habeas proceeding are limited solely to the conditions of defendant’s pretrial confinement. However, the criminal action also related, at least in part, to the conditions of defendant’s pretrial confinement. Thus, the habeas proceeding involves substantially the same issues, or at a minimum, matters necessarily relevant and material to the issues in the criminal action. Because the habeas proceeding is a continuation of the criminal action, the superior court correctly rejected the section 170.6 challenge as untimely.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/E080436M.PDF