Peracchi v. Superior Court

• Decision Date: 23 June 2003
• Docket Number: No. S103681.,S103681.
• Citation: 135 Cal.Rptr.2d 639,70 P.3d 1054,30 Cal.4th 1245
• Court: California Supreme Court
• Parties: James PERACCHI, Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent; The People, Real Party in Interest.

135 Cal.Rptr.2d 639

30 Cal.4th 1245

70 P.3d 1054

James PERACCHI, Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent;

The People, Real Party in Interest.

No. S103681.

Supreme Court of California.

June 23, 2003.

Rehearing Denied September 10, 2003.

David A. Gottlieb, Fresno; Nuttall Berman Attorneys and Roger T. Nuttall, for Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson, Anthony L. Dicce and Janine R. Busch, Deputy Attorneys General, for Real Party in Interest.

GEORGE, C.J.

In this case we interpret Code of Civil Procedure section 170.6, subdivision (2).¹ Section 170.6 permits a party in civil and criminal actions to move to disqualify an assigned trial judge on the basis of a simple allegation by the party or his or her attorney that the judge is prejudiced against the party. Various restrictions on the timing of the motion are imposed by this statute, and a party may exercise such a challenge only once during the trial of an action or a special proceeding. A motion that conforms to all the requirements of section 170.6, however, must be granted.

Historically, a challenge could not be filed for the first time after a reviewing court remanded the matter to the trial court. In 1985, however, the Legislature amended section 170.6 to add the following language: "A motion under this paragraph may be made 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." (§ 170.6, subd. (2).)

It is the quoted language that we interpret in this case. We must determine whether a party may challenge a trial judge pursuant to section 170.6, subdivision (2) after an appellate court partially reverses a criminal judgment and remands the matter to the trial court for potential retrial of the reversed count and for resentencing, in a case in which the prosecutor determines not to retry the charge in the reversed count. We conclude that the language of section 170.6, subdivision (2) does not permit a challenge when, following such a remand, the sole task left for the trial court is to resentence the defendant. We reach this conclusion because of the meaning of the statutory term "new trial" in the context of criminal proceedings, and because of the nature of sentencing hearings.²

I

A jury found petitioner guilty of two felonies that were committed in Fresno in 1996: reckless driving while eluding a police officer (Veh.Code, § 2800.2) and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). In a bifurcated proceeding, the trial court found true the allegations that petitioner had two prior strike convictions (for robbery and burglary). (Pen.Code, § 1170.12.) The court denied petitioner's motion to strike the prior convictions and sentenced petitioner to a term of 25 years to life in prison for the offense of reckless driving while evading a police officer, and to a concurrent term of 25 years to life for the offense of possession of a firearm.

Petitioner challenged the convictions on appeal. Among other contentions, he claimed that the trial court had erred under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 by admitting into evidence a statement made by petitioner to the police. The Court of Appeal determined that the error required reversal of petitioner's conviction for reckless driving while evading a police officer, but found the error harmless beyond a reasonable doubt as to the firearm possession count. The court's opinion decreed the following disposition: "The conviction for evading a police officer is reversed. The matter is remanded for retrial on that count, if the prosecutor so elects, and for resentencing. In all other respects the judgment is affirmed." (People v. Peracchi (2001) 86 Cal.App.4th 353, 364, 102 Cal.Rptr.2d 921.)

The case was remanded to the superior court and was assigned to the Honorable Lawrence Jones, the judge who had presided at trial. On May 18, 2001, pursuant to section 170.6, petitioner filed a written declaration of disqualification challenging Judge Jones. At a hearing held on May 24, 2001, Judge Jones announced that if the prosecution determined that the reversed count should be retried, the challenge would be granted. If, on the other hand, the prosecution determined not to retry the reversed count and the matter merely required a new sentencing hearing, the challenge would be denied. After the prosecutor stated that the charge of reckless driving while evading a police officer would not be retried, Judge Jones denied the challenge and set the matter for a sentencing hearing.

On June 4, 2001, petitioner filed a petition for writ of mandate in the Court of Appeal, contending that Judge Jones should have been disqualified from presiding at the resentencing hearing. The Court of Appeal issued an alternative writ directing respondent court to vacate its order denying petitioner's disqualification motion or show cause why relief should not be granted. When real party in interest elected to show cause, the Court of Appeal stayed the sentencing hearing.

In a divided decision, the Court of Appeal issued a peremptory writ of mandate directing the superior court to vacate the order denying the disqualification motion and to enter a new order granting the motion. We granted the petition for review filed by real party in interest.

The majority below relied in great part upon two Court of Appeal decisions that assigned a broad meaning to the term "new trial" in the context of civil trials. (See Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, 24 Cal.Rptr.2d 645 [a § 170.6 challenge lay when a judgment in a contract action was reversed in part and remanded for readjudication on a contested issue of fact]; Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 284 Cal.Rptr. 495 [same, in partnership dissolution action].) Employing the broad reading of the term "new trial" outlined by these decisions, the Court of Appeal in the present case declared that "the proper approach is to focus on the function the judicial officer is to perform upon remand, rather than simply the nature of the hearing at issue. Such an approach requires a case-by-case analysis." Because it found that the trial judge would have significant discretion at the resentencing hearing and would have an opportunity to "rehear evidence regarding the appropriate sentence for petitioner and ... have the opportunity to exercise his discretion in regard to such matters as striking a prior serious or violent felony," the Court of Appeal concluded that "[t]he policy behind section 170.6, to avoid possible bias by a trial judge who has been reversed on appeal, will best be served by interpreting `new trial' to encompass this resentencing." The Court of Appeal majority emphasized that its holding "is based on what decisions the trial court judge in this case is going to make on remand and not on the general nature of resentencings on remand."

The dissenting justice, however, criticizing the Hendershot and Stegs decisions, asserted that "nothing in the history of the 1985 amendment ... suggest[s] the Legislature intended to permit what would essentially amount to bifurcated trials of limited issues." In addition, the dissenting justice concluded, the term "new trial" has a more restrictive meaning in the criminal context than in the civil context. Although section 170.6 applies in both civil and criminal cases, the dissent continued, as applied in the criminal context, a resentencing hearing does not constitute a new trial.

As noted, we granted the petition for review filed by real party in interest. For the reasons stated below, we reverse the judgment of the Court of Appeal.

II

Litigants who establish good cause may disqualify the judge who is assigned to preside over a case. The grounds for disqualification of a judge for cause are set out in detail in the Code of Civil Procedure (see § 170.1), and the procedure to be followed for such a disqualification is set out in section 170.3. As we have observed: "Statutes governing disqualification for cause are intended to ensure public confidence in the judiciary and to protect the right of the litigants to a fair and impartial adjudicator ...." (Curie v. Superior Court (2001) 24 Cal.4th 1057, 1070, 103 Cal.Rptr.2d 751, 16 P.3d 166.) In addition to the challenge for cause, another available procedure serves the same goal. Without establishing cause pursuant to sections 170.1 and 170.3, a party may secure the disqualification of a judge on the basis of an affidavit asserting that the party believes the judge is biased. This constitutes the peremptory challenge of a judge set forth in section 170.6. (People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 806, 123 Cal.Rptr.2d 31, 50 P.3d 743.)³

This court described the basic outline of section 170.6 in Solberg v. Superior Court (1977) 19 Cal.3d 182, 137 Cal.Rptr. 460, 561 P.2d 1148. The statute "provides in substance that any party or attorney to a civil or criminal action may make an oral or written motion to disqualify the assigned judge, supported by an affidavit that the judge is prejudiced against such party or attorney or the interest thereof so that the affiant cannot or believes he cannot have an impartial trial. As hereinafter appears, there are strict limits on the timing and number of such motions; but if the motion is timely and in proper form, the judge must recuse himself without further proof and the case must be reassigned to another judge." (Id. at p. 187, 137 Cal.Rptr. 460,561 P.2d 1148.) We also explained that the statute reasonably serves the Legislature's evident purpose of "maintaining the appearance as well as the fact of impartiality in the...