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Name: Gomez v. Superior Court (2024) 100 Cal.App.5th 778
Case #: G062526
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 03/15/2024

Petitioner’s Penal Code section 1172.6 proceeding was a continuation of his plea hearing and thus his peremptory challenge of the prior judge was untimely. Gomez pled to one count of attempted murder and two enhancements and was sentenced to 11 years. He later filed a section 1172.6 petition and sought to disqualify the judge (the same judge who originally sentenced him) by way of a Code of Civil Procedure section 170.6 motion, which was denied. Gomez filed a petition for writ of mandate. Held: Petition denied. Whether a petitioner may file a section 170.6 peremptory challenge turns on whether the section 1172.6 proceeding is a continuation of the earlier action or proceeding. In this case the earlier proceeding was the plea hearing. In the plea context, when the sentencing is conducted by the same judge who accepted the plea, a motion to disqualify must be made before the plea bargain is accepted, otherwise the motion is untimely. Here, Gomez’s section 1172.6 proceeding was a continuation of his earlier criminal action in which he pleaded guilty and was sentenced. Additionally, section 1172.6(b)(1)’s same-judge rule restricts a petitioner’s right to direct a case away from a particular court by way of a 170.6 motion. Because Gomez did not challenge the judge before she accepted his guilty plea, his peremptory challenge was untimely and properly denied.