Periman v. Superior Court CA3

Filed 7/6/22 Periman v. Superior Court CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin) ----

ALLEN JOHN PERIMAN, C094401

Petitioner, (Super. Ct. No. STKCRFE20100005519) v.

THE SUPERIOR COURT OF SAN JOAQUIN COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

Defendant Allen John Periman petitioned for a writ of mandate or prohibition to compel the trial judge, who presided at his trial, to grant his peremptory disqualification

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motion under Code of Civil Procedure section 170.6 (section 170.6), which he filed after this court reversed the trial judge’s summary denial of his petition for resentencing under Penal Code section 1170.95. (Statutory section citations that follow are to the Penal Code.) Defendant’s writ petition involves the interplay between section 170.6, which permits a party in a civil or criminal action to move to disqualify an assigned trial judge based on a simple allegation that the judge is prejudiced against the party (§ 170.6, subd. (a)(2)), and section 1170.95, which provides a procedure for persons convicted of murder, like defendant was here, to seek retroactive relief for convictions based on theories of liability that are no longer viable after Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) amended sections 188 and 189. At issue is whether a party may challenge a trial judge pursuant to section 170.6 after an appellate court reverses the trial judge’s order summarily denying a resentencing petition under section 1170.95, subdivision (c), and remands the matter for further prima facie proceedings under the statute. Given events that have occurred since defendant filed his petition for writ of mandate in this court, we do not reach the merits of defendant’s claim because we conclude it is moot. Defendant has voluntarily withdrawn his underlying section 1170.95 resentencing petition. Because defendant’s resentencing petition is no longer pending before the judge whom defendant sought to disqualify under section 170.6, we cannot provide him any effective relief and we decline to exercise our discretion to reach the issue. Accordingly, we dismiss defendant’s petition for writ of mandate or prohibition as moot.