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Name: Torres v. Superior Court (2023) 94 Cal.App.5th 497
Case #: C097144
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/15/2023

A remand for further resentencing proceedings pursuant to Penal Code section 1172.6 does not constitute a remand for a “new trial,” thus no peremptory challenge of the prior judge is permitted under Code of Civil Procedure section 170.6. In 2011, Torres agreed to plead guilty to voluntary manslaughter, in addition to other charges. In 2019, she filed a request for resentencing pursuant to section 1172.6, which was summarily denied. On direct appeal, the court reversed the denial. On remand, Torres sought to peremptorily challenge the assigned judge who had originally denied her request for resentencing. The challenge was ultimately denied, and Torres petitioned the Court of Appeal for a writ of mandate or prohibition. Held: Petition denied. Code of Civil Procedure section 170.6 permits a defendant to peremptorily challenge a trial judge “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.” A remand for further resentencing proceedings held pursuant to section 1172.6 does not constitute remand for a “new trial.” While an evidentiary hearing under section 1172.6(d)(3) more closely resembles a trial than a simple resentencing, the parties are not placed in the same situation as if there had never been a trial.  Additionally, section 1172.6(b)(1) requires the judge who originally sentenced the petitioner to rule on the petition unless that judge is unavailable; this supports that the Legislature believed that the contemplated proceedings do not amount to a “new trial.” Thus, petitioner’s challenge under section 170.6 was properly denied as untimely. [Editor’s Note: The assigned trial court judge originally granted the peremptory challenge and assigned the case to a second judge. The second judge reassigned the case back to the first judge, finding the preemptory challenge was untimely. The Court of Appeal concluded that the second judge had the inherent authority to review the first judge’s ruling, as the first judge was no longer available, and therefore procedurally the order denying the challenge was properly before the Court of Appeal.]