In re Jenkins

Opinion

HASTINGS, J. J.Petitioner, Eddie James Jenkins, seeks a writ of habeas corpus on the ground that he was denied effective assistance of counsel because his trial attdmey failed to review the case file and discover that a Code of Civil Procedure section 170.6 peremptory challenge had previously been filed against the trial judge who ultimately tried the case. Because we conclude that the judgment is void, we grant the petition and direct the trial court to conduct a new trial.

[1164]Facts

Petitioner was charged with second degree commercial-burglary (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496, subd. (a)). Additionally, it was alleged that he had suffered six prior convictions each of which qualify as “strikes” pursuant to Penal Code section 1170.12, subdivisions (a) through (d). The alternate public defender’s office was appointed to represent petitioner at his arraignment in the superior court. Cheryl Lacour of that office appeared on behalf of petitioner.

On April 3, 1998, the matter was called for trial in department South E, presided over by Judge Richard Romero, and was then transferred to department South K, presided over by Judge Charles D. Sheldon. On behalf of petitioner, Lacour filed a peremptory challenge against Judge Sheldon and the matter was remanded to department South E. The matter was then transferred to department South J, presided over by Judge Arthur Jean, Jr., for trial to begin on April 6, 1998.

On April 6, Judge Jean substituted Attorney Sandra Stillwater into the case as petitioner’s counsel and relieved Lacour as counsel. Later that day, Judge Jean declared a mistrial and set a new pretrial date of May 14, 1998. He then transferred the matter back to department South E.

On June 25, 1998, Judge Richard W. Lyman, who was then presiding in department South J, received the matter for trial. Inexplicably, the matter was then transferred by Judge Lyman to department South K, Judge Sheldon’s department. Judge Sheldon commenced a jury trial the next day. The jury acquitted petitioner of burglary but found him guilty of receiving stolen property. Judge Sheldon sentenced Jenkins to 25 years to life pursuant to the “Three Strikes” sentencing scheme. Petitioner, in propria persona, filed a notice of appeal.1

On December 31, 1998, Jenkins filed with us a petition for a writ of habeas corpus. He asserts that he was deprived of his right to effective assistance of counsel by reason of Stillwater’s failure to discover and timely assert the peremptory challenge filed against Judge Sheldon. In support of the petition, Stillwater declares that when she was initially appointed she did not receive a copy of the peremptory challenge and she did not review the trial court’s file because it was represented to her that she had received all discovery which had been requested. She declared that if she had been aware of the peremptory challenge she would have asserted it on behalf of petitioner.