Mendoza v. The Superior Court (The People), D078566

CourtCalifornia Court of Appeals
Writing for the CourtHALLER, J.
Decision Date23 June 2021
Docket NumberD078566




California Court of Appeals, Fourth District, First Division

June 23, 2021

ORIGINAL PROCEEDINGS in mandate. Eugenia E. Eyherabide, Judge. Petition denied.

San Diego County Super. Ct. No. H22844

Elizabeth E. Comeau and Carl Fabian for Petitioner.

No appearance for Respondent.

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam and Martin E. Doyle, Deputy District Attorneys, for Real Party in Interest.



A superior court judge summarily denied a petition for writ of habeas corpus in which petitioner Nancy Michelle Mendoza[1] claimed she received ineffective assistance of counsel at her sentencing hearing. The California Supreme Court later issued an order to show cause (OSC) returnable before the superior court on the same claim. The case was then assigned to the same judge who previously had denied Mendoza's petition. More than 40 days later, Mendoza filed a peremptory challenge to the judge under Code of Civil Procedure section 170.6.[2] A different judge denied the challenge as untimely.

Mendoza seeks a writ of mandate directing the superior court to vacate its order denying her peremptory challenge and to disqualify the original judge. Her petition presents an issue of first impression as to whether her peremptory challenge is subject to section 170.6(a)(2)'s 60-day deadline following a “reversal on appeal” and assignment to the original judge for “a new trial” (in which case Mendoza's challenge was timely); or section 170.6(a)(2)'s 10-day deadline for criminal cases assigned to a judge for all purposes (in which case Mendoza's challenge was untimely).

We reject Mendoza's contention that the 60-day deadline applies. Even assuming the reversal on appeal condition is satisfied, the new trial condition is not. Section 170.6 does not define the term “new trial, ” but the Supreme Court has done so, finding that the definition differs significantly depending on whether a case is civil or criminal. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1253 (Peracchi).) Although a habeas corpus proceeding is “not entirely analogous to either category” (In re Scott (2003) 29 Cal.4th 783 (Scott)), we conclude the proceedings on Mendoza's petition are more analogous to a criminal case because she asserts quintessentially criminal law concepts (ineffective assistance of counsel and sentencing considerations) and seeks only a new sentencing hearing. Our Supreme Court has held that a resentencing hearing does not constitute a new trial for purposes of section 170.6. (Peracchi, at p. 1253.) Thus, because the proceedings on Mendoza's petition will not constitute a new trial, section 170.6's 60-day deadline does not apply.[3]

Instead, we conclude the 10-day all purpose assignment deadline applies. (See Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 998-1000 (Bontilao) [holding the 10-day deadline for all purpose assignments of criminal cases (rather than the 15-day deadline for civil cases) applies in habeas corpus proceedings]; People v. Superior Court (Reagan) (2020) 54 Cal.App.5th 766, 774, fn. 3 (Reagan) [following Bontilao].) Applying this deadline, the superior court properly denied Mendoza's challenge as untimely.

Accordingly, we deny Mendoza's petition for writ of mandate.


A. Mendoza's Underlying Convictions and Sentence

In 2007, when she was 18, Mendoza participated in a kidnap-for-ransom scheme with a Mexican drug cartel. She was ultimately convicted in 2012 of one count of conspiracy to kidnap for ransom, and two counts of kidnapping for ransom. As to one of the kidnapping counts, the jury found true the enhancement allegation that the victim suffered bodily harm and was intentionally confined in a manner that exposed him to a substantial risk of death. As to all counts, the jury also found gang and firearm-use enhancement allegations to be true.

The trial court (Judge John S. Einhorn) sentenced Mendoza to (1) a mandatory LWOP term for the kidnapping count with the attendant bodily harm enhancement finding, plus 10 years for the firearm enhancement; (2) life with the possibility of parole, plus 10 years for the firearm enhancement on the other kidnapping count; and (3) a stayed (§ 654) term of life, plus 10 years, for the conspiracy conviction and attendant firearm enhancement.

Mendoza's defense counsel argued at the sentencing hearing that the LWOP sentence was cruel and unusual, but did not ask the court to exercise its discretion under Penal Code section 1385 to strike the bodily harm enhancement that resulted in Mendoza's mandatory LWOP sentence. (Pen. Code, § 209, subd. (a).)

B. Direct Appeal

Mendoza appealed her convictions to our court, raising more than 25 contentions, including that her sentencing counsel (Elizabeth Comeau and Merle Schneidewind) rendered ineffective assistance by failing to request that the trial court exercise its discretion to strike the bodily harm enhancement. (People v. Moreno (Cal.Ct.App., Jan. 27, 2016, No. D064526) 2016 WL 336314, at pp. *1, *46 (Moreno).)[4] Comeau, who also represented Mendoza in the appeal, acknowledged she had no tactical reason for failing to make the request, which she maintained would have been granted. (Id. at p. *46.) Our court rejected Mendoza's claims. (Id. at pp. *47, *49.)

Mendoza petitioned the California Supreme Court for review. The Supreme Court denied the petition, but clarified the next day that the denial was “without prejudice to filing a petition for a writ of habeas corpus in the superior court alleging ineffective assistance of counsel at sentencing.”

C. Habeas Corpus Proceeding

1. Superior Court

Mendoza filed a petition for writ of habeas corpus in the superior court raising several issues, including that her sentencing counsel rendered ineffective assistance by failing to request that the trial court strike the bodily harm enhancement.[5]

The sentencing judge had since retired, so Mendoza's petition was assigned to Judge Kenneth So, who later issued a 54-page order denying Mendoza's petition on the ground she failed to state a prima facie case for relief. Regarding the sentencing issue, Judge So found Mendoza had not established the prejudice prong of her ineffective assistance claim because “there is no reasonable probability that the court would have stricken the enhancement ‘in the interest of justice.' ”

2. Court of Appeal

Mendoza (represented by attorney Comeau) filed a habeas corpus petition in this court raising 17 issues, including the claim regarding ineffective assistance at sentencing. Our court summarily denied the petition.

3. California Supreme Court

Mendoza (again represented by attorney Comeau) filed a habeas corpus petition in the California Supreme Court asserting 17 grounds for relief, including the claim regarding ineffective assistance at sentencing. The court requested and received informal responses from the parties.

On November 24, 2020, the Supreme Court issued an order to “[t]he Secretary of the Department of Corrections and Rehabilitation... to show cause before the San Diego Superior Court... why [Mendoza] is not entitled to relief based on her claim that trial counsel rendered ineffective assistance at sentencing by failing to seek dismissal of the Penal Code section 209 enhancement for infliction of bodily harm under Penal Code section 1385.” The court clerk also sent a letter to the superior court advising that the issuance of the OSC “requires the appointment of counsel, a hearing, and the disposition of the petitioner's claims on their merits.”

D. Peremptory Challenge

About two weeks later, on December 4, 2020, Judge So issued an order appointing the Office of Assigned Counsel (OAC) to represent Mendoza, and setting a briefing schedule on the OSC. The order stated that the “Court will not rule on the [OSC] until all briefing is complete....” On December 8, the court served the order by mail on the parties, OAC, and attorney Comeau.

On December 28, 2020, OAC assigned Mendoza's case to attorney Comeau.[6]

On January 25, 2021, attorney Comeau filed on Mendoza's behalf a peremptory challenge of Judge So under section 170.6. Comeau maintained the challenge was subject to the 60-day deadline set forth in section 170.6 (a)(2), which applies “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.” She argued the Supreme Court's OSC was a reversal on appeal and a remand for a new trial because it “constituted an order for the reexamination of the merits of Judge So's earlier order denying [Mendoza]'s habeas corpus petition.”

On February 2, 2021, Judge Eugenia Eyherabide denied Mendoza's peremptory challenge as untimely. Judge Eyherabide found the 60-day deadline inapplicable, reasoning the Supreme Court's OSC did not constitute a “reversal on appeal” because Mendoza's habeas corpus petition to the Supreme Court was not an appeal-it was a “separate and distinct” legal proceeding that invoked the Supreme Court's original jurisdiction. Judge Eyherabide did not reach whether the proceeding before Judge So would constitute “a new trial” within the meaning of section 170.6 (a)(2).

Instead, Judge Eyherabide concluded Mendoza's peremptory challenge was subject to the 10-day deadline applicable to criminal proceedings assigned to a judge for all purposes. (§ 170.6(a)(2) [“If directed to the trial of a criminal cause that has been assigned to a judge for all purposes, the motion shall be made... within 10 days....”].) Mendoza's challenge was untimely under this standard.

E. This Petition for Writ of Mandate

On Mendoza's behalf, attorney Comeau filed the instant petition for writ of mandate seeking...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT