People v. Braley

• Citation: 266 Cal.Rptr.3d 502,52 Cal.App.5th 680
• Decision Date: 27 July 2020
• Docket Number: B299905
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas BRALEY, Defendant and Appellant.

52 Cal.App.5th 680

266 Cal.Rptr.3d 502

The PEOPLE, Plaintiff and Respondent,

v.Thomas BRALEY, Defendant and Appellant.

B299905

Court of Appeal, Second District, Division 3, California.

Filed July 27, 2020

David M. Thompson, Corte Madera, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

DHANIDINA, J.

Thomas Braley appeals from an order denying his petition for recall and resentencing on a prior serious or violent felony and to be considered for elderly parole. After his appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, we asked for supplemental briefing regarding whether the judge who ruled on the petition was disqualified from doing so. Because we conclude that the judge was disqualified from ruling on the petition, we reverse the order and remand.

BACKGROUND

In March 2007, a jury convicted Braley of second degree robbery ( Pen. Code, § 211 ) and of petty theft with priors ( Pen. Code, § 666 ). He was sentenced in April 2007 to 25 years to life plus two 5-year terms for prior convictions under section 667, subdivision (a)(1). On appeal, the conviction for petty theft with a prior was vacated, and the judgment was affirmed as modified. ( People v. Braley (Aug. 14, 2008, B199140) 2008 WL 3509243 [nonpub. opn.].) The California Supreme Court denied review that same year, and the United States Supreme Court denied certiorari in 2009.

In March 2019, Braley filed a petition to dismiss the five-year priors under newly-enacted Senate Bill No. 1393¹ and to be considered for elderly parole under Penal Code section 3055. The Honorable William C. Ryan was assigned to hear the petition. Judge Ryan noted that in 2006 Braley had filed a motion to disqualify him under Code of Civil Procedure section 170.6² in the case underlying the petition. Being timely, Judge Ryan had granted the motion, and the case was reassigned. However, Judge Ryan found that he was not disqualified from now hearing the petition because it was "a new post-conviction proceeding assigned to" him by the director of the criminal writs center under the Superior Court of Los Angeles County, Local Rules, rule 8.33(a)(3), to which section 170.6 did not apply. In further support of his ability to hear the petition, Judge Ryan cited Maas v. Superior Court (2016) 1 Cal.5th 962, 209 Cal.Rptr.3d 571, 383 P.3d 637. As to the substantive issues, Judge Ryan found that Senate Bill No. 1393 did not apply to Braley as Braley's case was final long before the bill became effective and denied the request for elderly parole without prejudice because Braley failed to show he had exhausted his administrative remedies.

Braley then filed this appeal. After review of the record, Braley's court-appointed counsel filed an opening brief which raised no issues, asking this court to conduct an independent review of the record, under People v. Wende , supra , 25 Cal.3d at page 441, 158 Cal.Rptr. 839, 600 P.2d 1071. Braley filed a supplemental brief.³ We then asked the parties to brief whether Judge Ryan was disqualified from hearing the petition.

DISCUSSION

Having granted the motion to disqualify himself in 2006 from the underlying case, was Judge Ryan disqualified from considering the subsequent petition under section 170.6 ? As we now explain, the answer is yes.

Disqualification of a judge helps ensure public confidence in the judiciary and protects litigants’ rights to a fair and impartial adjudicator. ( Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1251, 135 Cal.Rptr.2d 639, 70 P.3d 1054 ( Peracchi ).) To that end, section 170.6, subdivision (a)(1) provides that a judge "shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established" that the judge is prejudiced against a party or attorney or the interest of a party or attorney in the action or proceeding. If the motion is properly and timely made, then the action shall be reassigned. ( § 170.6, subd. (a)(2), (3).) If "the motion is directed to a hearing, other than the trial of a cause, the motion shall be made not later than the commencement of the hearing." ( § 170.6, subd. (a)(2).) When a litigant meets the requirements of section 170.6, disqualification of the judge is mandatory, and there is no requirement it be shown the judge is actually prejudiced. ( Maas v. Superior Court , supra , 1 Cal.5th at p. 972, 209 Cal.Rptr.3d 571, 383 P.3d 637.) Section 170.6 must be liberally construed in favor of allowing a peremptory challenge, which should be denied only if the statute absolutely forbids it. ( Maas , at p. 973, 209 Cal.Rptr.3d 571, 383 P.3d 637.) We review a court's ruling on a section 170.6 issue de novo where, as here, the facts are undisputed. ( Andrew M. v. Superior Court (2020) 43 Cal.App.5th 1116, 1124, 257 Cal.Rptr.3d 257.)

When a motion to disqualify is made in a subsequent proceeding, the motion's propriety and timing depend on whether the subsequent proceeding is a continuation of an earlier action or a separate and independent proceeding. " ‘A peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action.’ " ( Manuel C. v. Superior Court (2010) 181 Cal.App.4th 382, 385, 104 Cal.Rptr.3d 787.) A subsequent proceeding is a continuation of an earlier action, so as to preclude a peremptory challenge to the judge, if the action involves substantially the same issues and matters necessarily relevant and material to the issues involved in the prior action. ( Ibid. ; Yokley v. Superior Court (1980) 108 Cal.App.3d 622, 626, 166 Cal.Rptr. 657.)

Here, Judge Ryan was disqualified from presiding over Braley's 2007 criminal trial. If Braley's subsequent 2019 petition to dismiss his five-year priors and to be considered for elderly parole were a continuation of that original action, then Judge Ryan would have been disqualified from hearing the petition. But if the petition were a separate and independent action, Judge Ryan would not have been disqualified from hearing it, and Braley would have had to file a new motion to disqualify Judge Ryan.

Judge Ryan determined that the petition was separate and independent from the criminal trial because the petition was a postconviction proceeding assigned to him by the director of the criminal writs center per the Superior Court of Los Angeles County, Local Rules, rule 8.33(a)(3). However, that rule merely dictates assignment of certain petitions concerning, for example, parole matters. Even if Braley's petition were properly assigned to Judge Ryan under that rule, nothing in the rule states that section 170.6 is inapplicable to matters assigned to a judge thereunder. And if the rule did so state, then it would be invalid to the extent it conflicted with section 170.6. (See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1351–1352, 63 Cal.Rptr.3d 483, 163 P.3d 160.)

The procedural fact that the petition was a postconviction matter assigned per local rules does not answer the key question presented here: whether the petition involved substantially the same issues and matters necessarily relevant and material to the issues in Braley's prior criminal trial. As to that issue, Braley's petition raised sentencing issues, i.e., whether he was entitled to have priors stricken or dismissed and to be considered for elderly parole. These issues are inextricably linked to what occurred at trial.

The court in Peracchi , supra , 30 Cal.4th 1245, 135 Cal.Rptr.2d 639, 70 P.3d 1054 considered the general nature of sentencing within the specific context of whether resentencing after a remand is a new trial within the meaning of section 170.6, subdivision (a)(2).⁴ That section permits a party to move to disqualify a judge following either reversal on appeal of a decision or final judgment of that judge, if the trial judge in the prior proceeding is assigned to conduct a new trial in the matter. ( § 170.6, subd. (a)(2).) The defendant in Peracchi had appealed from a judgment of conviction and the case was remanded to the trial court to retry one of the counts against him or, if the prosecution elected not to retry it, for resentencing. ( Peracchi , at p. 1250, 135 Cal.Rptr.2d 639, 70 P.3d 1054.) On remand, the matter was assigned to the judge who had presided over trial. The defendant moved to disqualify the judge, who denied the motion because the prosecution had elected not to retry the count at issue. ( Ibid. ) The matter therefore was before the judge for resentencing only. Peracchi concluded that the motion was properly denied because resentencing after remand is not a new trial within the meaning of the statute. ( Id . at pp. 1257–1258, 135 Cal.Rptr.2d 639, 70 P.3d 1054.)

In reaching that conclusion, Peracchi , supra , 30 Cal.4th 1245, 135 Cal.Rptr.2d 639, 70 P.3d 1054 made observations about sentencing that are apt here. At a sentencing or resentencing hearing the trial court resolves issues in light of what occurred at trial. ( Id. at p. 1254, 135 Cal.Rptr.2d 639, 70 P.3d 1054.) For this reason, the usual procedure is to have the judge who presided over trial preside over sentencing and resentencing. ( Ibid. ) The original trial judge is in the best position to preside because the original trial judge must exercise sentencing discretion "on the basis of the preexisting trial record and verdict." ( Id. at p. 1257, 135 Cal.Rptr.2d 639, 70 P.3d 1054.) The court may consider certain factual issues that relate to the choice of appropriate sentence, "but the court resolves those issues in light of what occurred at trial, including its own impressions of matters such as the defendant's demeanor and conduct at trial." ( Id....