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California Court of Appeal: Peremptory Challenge to Judge in Habeas Case Subject to 10-Day Filing Period, Not 60 Days, Under § 170.6(a)(1)

by Dale Chappell 

Deciding a question of first impression, the Court of Appeal of California, Fourth Appellate District, held that an order to show cause by the California Supreme Court in a habeas corpus case, returnable to the superior court, requires that a motion to disqualify the judge must be filed within 10 days, not the more lenient 60 days for new trials in criminal cases.

The issue came before the court when Nancy Mendoza’s habeas petition was treated favorably by the Supreme Court, which issued an order to show cause, returnable to the trial court, as to why Mendoza’s petition should not be granted. The Supreme Court instructed the trial court to hold a hearing and determine the merits of her claims, something the lower courts refused to do in her previous petitions.

The dilemma arose mainly because of California’s unique handling of the denial of habeas petitions. There is no appeal process; instead, a petitioner files a new habeas petition in the next highest court. Mendoza did just this, and when she reached the Supreme Court, her petition was sent back to the superior court, vesting that court with jurisdiction over her petition filed in the Supreme Court.

Mendoza’s original trial judge had retired before her habeas petition was filed, and she moved to disqualify the new judge under Cal. Penal Code § 170.6(a)(1). That provision says that a judge “shall not” try a civil or criminal action when it’s established that the judge “is prejudiced against a party or attorney ... appearing in the action or proceeding.” Two time limits apply to such motions. Under § 170.6(a)(2), a 60-day limit applies when there has been a reversal on appeal and the case has been assigned to the same judge for a “new trial” on the matter. However, a 10-day limit applies if the “criminal cause” has been assigned to the judge “for all purposes.” The Legislature added a 60-day deadline “following reversal on appeal” to address the concern that “a judge who had been reversed might prove to be biased against the party who successfully appealed the judge’s erroneous ruling at the original trial.” Paterno v. Superior Court, 123 Cal. App. 4th 548 (2004).

The question in this case was whether the Supreme Court’s treatment of Mendoza’s petition in sending it back to the trial court was, in effect, a “new trial” in a criminal proceeding to trigger the 60-day clock. If so, Mendoza’s disqualification motion was timely-filed. If not, her motion was 17 days beyond the 10-day limit.

The first issue was whether a habeas petition is a civil or criminal case. While this question has been raised numerous times in the courts over many years, the Court here leaned in favor of it being a criminal action but did not expressly hold as much, except for this case. This was important because only a habeas petition construed as a criminal case falls under § 170.6(a), the Court noted, citing the Legislature’s label of habeas corpus cases as “special proceedings of a criminal nature.”

“We are persuaded that the scope of Mendoza’s habeas corpus claim is more appropriately categorized as criminal than civil,” the Court said. “First, the claim arises from what occurred—or rather, what Mendoza contends should have occurred—at the original sentencing hearing. Second, Mendoza’s habeas corpus claim is premised on ineffective assistance of counsel. This concept applies in criminal, but not civil, cases.” Mendoza had claimed that her lawyer failed to challenge an enhancement which resulted in a life sentence, which likely did not apply to her.

The next issue was whether Mendoza’s habeas case sent back to the trial court was a “new trial,” triggering § 170.6(a). The Court held that it was not. “Mendoza’s habeas corpus petition is not a new trial for purposes of section 170.6(a)(2) because nothing that happens at that [habeas] hearing will put Mendoza in the same position as if there had been no trial, not will she proffer new evidence on the issues decided by the verdict,” the Court reasoned. “At most, the proceeding will result in a resentencing hearing, which is not a new trial.”

The Court concluded that Mendoza’s habeas case fell within the 10-day time limit as an “all purpose” case under § 170.6(a). “For a case assignment to be an all-purpose assignment, two prerequisites must be met. First, the method of assigning cases must instantly pinpoint the judge whom the parties can expect to ultimately preside at trial. Second, the same judge must be expected to process the case in its totality, from the time of the assignment, thereby acquiring an expertise regarding the factual and legal issues involved, which will accelerate the legal process.”

In the present case, the same judge ordered the parties to file briefings in the trial court and would decide the habeas petition. Thus, Mendoza’s habeas petition sent to the trial court by the Supreme Court for a hearing on the merits was an “all-purpose assignment” and not a new trial, and the 10-day time limit for motions to disqualify applied under § 170.6(a)(2), the Court held.

Accordingly, the Court denied Mendoza’s petition for writ of mandate to challenge the trial court’s denial of her judge-disqualification motion as untimely-filed. See: Mendoza v. Superior Court, 65 Cal. App. 5th 988 (2021), cert. denied, Mendoza v. Superior Court, 2021 Cal. LEXIS 6536 (Cal., Sept. 15, 2021). 

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