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Name: Sandoval v. Superior Court (2023) 95 Cal.App.5th 1274
Case #: H050633
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 09/29/2023

A Penal Code section 1172.6 hearing conducted after reversal on appeal and remand is not a “new trial” under Code of Civil Procedure section 170.6, and therefore petitioner is not entitled to a postappeal peremptory challenge of the judge. In 2019, Sandoval filed a petition for resentencing under section 1170.95 (now 1172.6) and the trial court denied the petition after an evidentiary hearing. The Court of Appeal reversed and remanded the matter for reconsideration. On remand, the case was assigned to the same trial judge and Sandoval filed a peremptory challenge pursuant to section 170.6 seeking to disqualify the judge. The trial court denied the motion and Sandoval filed a petition for writ of mandate in the Court of Appeal challenging the trial court’s decision. 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. Here, the Court of Appeal analyzed the relevant statutes and case law and concluded its prior remand “for reconsideration of the [resentencing] petition pursuant to Penal Code section 1172.6, subdivision (d)(3)” did not constitute a “new trial” for purposes of section 170.6(a)(2).