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Name: Mendoza v. Superior Court
Case #: D078566
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/23/2021

In a habeas proceeding where no “new trial” is ordered, a peremptory challenge to the judge is subject to the 10-day deadline under Code of Civil Procedure section 170.6, subdivision (a)(2). Petitioner Mendoza filed a petition for writ of habeas corpus in which she claimed she received ineffective assistance of counsel at her sentencing hearing. The trial court denied the petition, but the California Supreme Court later issued an order to show cause (OSC) returnable before the superior court. More than 40 days later, Mendoza filed a peremptory challenge to the judge under section 170.6. The challenge was denied as untimely. Mendoza sought a writ of mandate to vacate the order denying her peremptory challenge. Held: Petition denied. Section 170.6 permits a party to disqualify a judge for prejudice, based solely upon a sworn statement, without being required to factually establish prejudice. Under the all-purpose assignment rule, a section 170.6 challenge to a judge must be filed within 10 days for criminal cases. (§ 170.6, subd. (a)(2).) Alternatively, a 60-day deadline applies “following reversal on appeal” of a trial court’s decision “if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.” (§ 170.6, subd. (a)(2).) Section 170.6 does not define “reversal on appeal” or “new trial.” Assuming without deciding that the Supreme Court’s OSC constitutes a reversal on appeal, the ensuing habeas corpus proceeding does not satisfy the additional condition that the reversal was to conduct a “new trial.” The definition of “new trial” varies significantly depending on whether the case is civil or criminal. A habeas proceeding that raises only a claim of ineffective assistance of counsel at sentencing, and which seeks only a resentencing hearing, is more analogous to a criminal case. In a criminal case, resentencing is not a “new trial” for purposes of section 170.6. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1253.) Therefore, the 60-day deadline does not apply, and Mendoza’s peremptory challenge was untimely.