Mendoza v. Superior Court CA3

Filed 10/3/23 Mendoza v. Superior Court CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

EMMANUEL MATHEW MENDOZA, C098138

Petitioner, (Super. Ct. No. STKCRFE20110004791) v.

THE SUPERIOR COURT OF SAN JOAQUIN COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

We deny petitioner Emmanuel Mathew Mendoza’s petition for writ of mandate or prohibition because a peremptory challenge to a judge under Code of Civil Procedure

1

section 170.6 is unavailable for the resentencing procedures under Penal Code section 1172.6 (further undesignated statutory references are to the Penal Code).1 BACKGROUND In 2019, Mendoza filed a section 1172.6 petition for resentencing of his 2012 first degree murder conviction with a robbery special-circumstance finding. The trial court denied the petition at the prima facie stage because of the special circumstance. We reversed the trial court’s denial. (People v. Mendoza (Dec. 12, 2022, C089455) [nonpub. opn.].) On remand, Mendoza filed a declaration of prejudice under Code of Civil Procedure section 170.6 challenging the trial court judge who had originally denied the section 1172.6 petition and was also the judge for Mendoza’s original trial. The trial court stated, “I’m going to reject that.” Mendoza filed a petition for writ of mandate or prohibition with this court, and we issued an order to show cause. DISCUSSION Code of Civil Procedure section 170.6 permits peremptory challenges of judges before trial begins. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1252-1253.) A challenge under this section is also permitted “following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.” (Code Civ. Proc., § 170.6, subd. (a)(2), italics added.) Mendoza contends the trial court erred in denying his Code of Civil Procedure section 170.6 motion because a section 1172.6 proceeding is a “new trial.”