Estrada v. Super. Ct.

Filed 7/21/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ERICA ESTRADA, B325769
Petitioner, (Los Angeles County
Super. Ct. No. YA076269)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Scott T. Millington, Judge.
Petition denied.
The Law Offices of Stein and Markus, Joseph A. Markus, Andrew M.
Stein, Joseph E. Markus and Brentford Ferreira for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah
P. Hill, Thomas C. Hsieh and Daniel C. Chang, Deputy Attorneys General,
for Real Party in Interest.
INTRODUCTION
The Code of Civil Procedure 1 provides that on remand “following
reversal on appeal of a trial court’s final judgment,” a party is entitled to a
peremptory challenge “if the trial judge in the prior proceeding is assigned to
conduct a new trial on the matter.” (§ 170.6, subd. (a)(2).) We must decide
whether a party who obtains a reversal of an order denying a petition for
resentencing under Penal Code section 1170.95 (now § 1172.6) 2 is entitled to
a postappeal peremptory challenge of the judge who denied the petition.
We hold that the hearing required in Penal Code section 1172.6,
subdivision (d)(3), after reversal and remand is not a “new trial” within the
meaning of section 170.6, subdivision (a)(2). Therefore, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Judge Scott T. Millington presided over Erica Estrada’s criminal trial
and the subsequent petition for resentencing.
A. Underlying Conviction
In 2013, a jury convicted Estrada of felony murder and found true a
robbery-murder allegation under Penal Code section 190.2 (the special
1 All further statutory references are to the Code of Civil Procedure
unless otherwise stated.
2 Effective June 30, 2022, Penal Code section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For ease of
reference, we will refer to the section by its new numbering only.
2
circumstance statute). During the pendency of her direct appeal, our
Supreme Court clarified the meaning of the special circumstance statute in
People v. Banks (2015) 61 Cal.4th 788 (Banks). This court affirmed the
judgment, holding that the special circumstance finding was supported by
substantial evidence under Banks. (People v. Gonzalez (2016) 246
Cal.App.4th 1358 (Gonzalez I).) The Supreme Court then granted review on
an issue immaterial to this appeal and affirmed. (People v. Gonzalez (2018) 5
Cal.5th 186 (Gonzalez II).)
B. Petition for Resentencing
After the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB
1437), which narrowed the felony murder rule, Estrada filed a petition for
resentencing under Penal Code 1172.6, alleging she was not guilty of murder
in light of SB 1437. Without issuing an order to show cause, the trial court
denied the petition, reasoning that (1) the robbery-murder special
circumstance finding precluded relief as a matter of law, and (2) although
some cases had held that a pre-Banks special circumstance finding alone
could not preclude relief under Penal Code section 1172.6, those cases were
inapposite in light of the holding in Gonzalez I that the special circumstance
finding was supported by substantial evidence under Banks.
On appeal, this court held that the trial court erred in denying
Estrada’s petition without issuing an order to show cause. (People v. Estrada
(May 17, 2022, B312352) [nonpub. opn.].) This court explained that neither
the jury’s pre-Banks special circumstance finding nor the prior appellate
opinion in Gonzalez refuted, as a matter of law, defendant’s allegations that
she was not a major participant in the robbery and did not act with reckless
indifference to human life within the meaning of the special circumstance
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statute as clarified in Banks. This court further concluded the error was not
harmless regardless of whether the trial record contains substantial evidence
under Banks, as a finding of substantial evidence of her guilt under a still-
valid theory of murder is insufficient to render her ineligible for resentencing
under Penal Code section 1172.6. Accordingly, this court reversed the order
denying Estrada’s petition and remanded the matter to the trial court with
directions to issue an order to show cause and proceed in accordance with
Penal Code section 1172.6.
C. Peremptory Challenge
After remittitur issued, Estrada was notified that the matter had been
assigned back to Judge Millington. Estrada filed a peremptory challenge to
disqualify him. The People filed a response, and then both parties filed
supplemental briefs. Judge Millington denied the peremptory challenge,
finding that the hearing required in Penal Code section 1172.6, subdivision
(d)(3) (subject hearing) does not constitute a “new trial” within the meaning
of section 170.6, subdivision (a)(2). The court then found “a prima facie
showing [had] been made based upon the appellate court decision” and issued
an order to show cause.
D. Writ Proceedings
Estrada filed a petition for writ of mandate challenging the trial court’s
denial of her peremptory challenge. This court denied the petition for failure
to demonstrate a prima facie case entitling her to extraordinary relief. After
Estrada filed a petition to review, our Supreme Court stayed all further
proceedings pending its review. The court ultimately granted the petition
and transferred the matter back to this court with directions to vacate our
4
order denying the petition for writ of mandate and to issue an order to show
cause. The stay previously issued was to remain in effect pending further
court order.
This court vacated its prior order and issued an order to show cause
pursuant to our Supreme Court’s directive. The People filed a return. No
reply brief was filed by Estrada.
DISCUSSION
Estrada contends that the trial court erred in denying the peremptory
challenge because the subsequent lower court proceeding, specifically the
subject hearing, constitutes a “new trial” within the meaning of section 170.6,
subdivision (a)(2). In response, the Attorney General contends the plain
language of Penal Code section 1172.6 bars a peremptory challenge. In any
event, the subject hearing is not a “new trial.”
A. Overview of Relevant Law
1. Peremptory Challenge
Section 170.6 “‘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 [or she] cannot have an impartial trial. . . . [T]here 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 [or herself] without further
proof and the case must be reassigned to another judge.’” (Peracchi v.
Superior Court (2003) 30 Cal.4th 1245, 1252 (Peracchi).) “[T]he statute
5
reasonably serves the Legislature’s evident purpose of ‘maintaining the
appearance as well as the fact of impartiality in the judicial system.” (Ibid.)
“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. [(a)](2).)” (Peracchi, supra, 30
Cal.4th at p. 1249, italics added.) This provision was included “‘“to address
the ‘concern . . . that a judge who had been reversed might prove to be biased
against the party who successfully appealed the judge’s erroneous ruling at
the original trial.’”’ (Paterno v. Superior Court (2004) 123 Cal.App.4th 548,
556.)” (Mendoza v. Superior Court (2021) 65 Cal.App.5th 988, 996.) Section
170.6 does not define the term “new trial.”
2. Petition for Resentencing
Effective January 1, 2019, the Legislature enacted SB 1437, “which
made significant changes to the scope of murder liability for those who were
neither the actual killers nor intended to kill anyone, including certain
individuals formerly subject to punishment on a felony-murder theory.”
(People v. Strong (2022) 13 Cal.5th 698, 707 (Strong).)
SB 1437 “also created a special procedural mechanism for those
convicted under the former law to seek retroactive relief under the law as
amended.” (Strong, supra, 13 Cal.5th at p. 708; People v. Gentile (2020) 10
Cal.5th 830, 843, abrogated in part on another ground in Stats. 2021, ch. 551,
§2.) Under newly enacted Penal Code section 1172.6, the process begins with
6
filing a petition with the original sentencing judge, if available. (Pen. Code,
§ 1172.6, subd. (b)(1).) The petition must contain a declaration that all
requirements for eligibility are met, including “[t]he petitioner could not
presently be convicted of murder or attempted murder because of changes to
[Penal Code] [s]ection 188 or 189 made effective January 1, 2019.” (Pen.
Code, § 1172.6 subd. (a)(3).)
If a petitioner makes a prima facie showing that he or she is entitled to
relief, the trial court must issue an order to show cause and hold a hearing
“to determine whether to vacate the murder, attempted murder, or
manslaughter conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the petitioner
had not previously been sentenced, provided that the new sentence, if any, is
not greater than the initial sentence.” (Pen. Code, § 1172.6, subd. (d)(1).)
“At the [subject] hearing to determine whether the petitioner is entitled
to relief, the burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted murder
under California law as amended by the changes to [Penal Code] [s]ection 188
or 189 made effective January 1, 2019. The admission of evidence in the
hearing shall be governed by the Evidence Code, except that the court may
consider evidence previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony, stipulated
evidence, and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate opinion.
However, hearsay evidence that was admitted in a preliminary hearing
pursuant to subdivision (b) of [Penal Code] [s]ection 872 shall be excluded
from the hearing as hearsay, unless the evidence is admissible pursuant to
another exception to the hearsay rule. The prosecutor and the petitioner may
7
also offer new or additional evidence to meet their respective burdens.” (Pen.
Code, § 1172.6, subd. (d)(3).)
If the prosecution fails to sustain its burden of proof, “the prior
conviction, and any allegations and enhancements attached to the conviction,
shall be vacated and the petitioner shall be resentenced on the remaining
charges.” (Pen. Code, § 1172.6, subd. (d)(3).)
B. Standard of Review
“‘We review questions of statutory construction de novo. Our primary
task “in interpreting a statute is to determine the Legislature’s intent, giving
effect to the law’s purpose.”’ [Citations.] To determine whether a conditional
reversal and remand for the limited purpose of conducting the [subject
hearing] is a ‘new trial’ within the meaning of section 170.6, subdivision
(a)(2), we look first to the language of the statute, which is ‘the best
indication of legislative intent.’ [Citations.] ‘“[W]e do not construe statutes
in isolation, but rather read every statute ‘with reference to the entire
scheme of law of which it is a part so that the whole may be harmonized and
retain effectiveness.’”’ [Citations.] ‘“‘If the statutory language permits more
than one reasonable interpretation, courts may consider other aids, such as
the statute’s purpose, legislative history, and public policy.’”’ [Citations.]”
(Akopyan v. Superior Court (2020) 53 Cal.App.5th 1094, 1098–1099.)
C. Analysis
1. Plain Language of Penal Code Section 1172.6
A party’s ability to disqualify a judge without cause is not absolute. A
peremptory challenge is unavailable when permitting disqualification of the
judge would contravene other statutory provisions. (Peracchi, supra, 30
8
Cal.4th at p. 1262; see e.g., People v. Superior Court (Jimenez) (2002) 28
Cal.4th 798, 806 [Penal Code section 1538.5, subdivision (p), which requires
relitigating a suppression motion before the same judge who previously
granted the motion (if the judge is available), conflicts with and prevails over
section 170.6, subdivision (a)(2), which would otherwise permit a peremptory
challenge to that judge].)
As previously noted, Penal Code section 1172.6 requires the judge who
originally sentenced the petitioner to hear a petition for resentencing unless
that judge is not available. (§ 1172.6, subd. (b)(1); People v. Santos (2020) 53
Cal.App.5th 467, 474.) This requirement acknowledges that “a judge who is
familiar with the facts, evidence, and law already part of the record is better
equipped to rule on a petition than a different judge, unfamiliar with the
case, who is reviewing a cold record.” (People v. Santos, supra, at p. 474.)
Thus, “[t]he Legislature’s intent is best served when the outcome of the
petition is determined by a judge who is particularly well placed to take all
the facts and circumstances of the underlying case into account.” (Ibid.)
Estrada does not dispute her petition for resentencing was properly
before Judge Millington pursuant to Penal Code section 1172.6, subdivision
(b)(1), both in the first instance and on remand. Rather, she argues the
statute does not foreclose her ability to file a peremptory challenge to
disqualify Judge Millington postappeal. Assuming (without deciding) that
this is correct, we must now determine whether the subject hearing that is to
be conducted on remand constitutes a “new trial” within the meaning of
section 170.6, subdivision (a)(2). As discussed below, we conclude it does not.
9
2. The Meaning of “New Trial”
Our Supreme Court in Peracchi discussed the meaning of the term
“new trial” for purposes of section 170.6. 3
On appeal, the defendant in Peracchi challenged his convictions for
reckless driving while eluding a police officer and being a felon in possession
of a firearm. (Peracchi, supra, 30 Cal.4th at p. 1249.) The Court of Appeal
reversed the reckless driving while evading a police officer conviction,
affirmed the firearm conviction, and “‘remanded for retrial on [the reckless
driving] count, if the prosecutor so elect[ed], and for resentencing.’” (Id. at p.
1250.) When the case was remanded and assigned to the judge who had
presided over the trial, the defendant filed a peremptory challenge to
disqualify him under section 170.6. (Ibid.) The judge “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.” (Ibid.) After the
prosecutor declined to retry the reversed count, the judge denied the
peremptory challenge and set the matter for resentencing. (Ibid.)
The defendant filed a petition for a writ of mandate in the Court of
Appeal challenging the trial court’s denial of his peremptory challenge.
(Peracchi, supra, 30 Cal.4th at p. 1250.) In a divided decision, the court
granted the requested relief, primarily relying on the “broad meaning”
assigned “to the term ‘new trial’ in the context of civil trials.” (Ibid.; see § 656
3 Peracchi relied upon section 170.6, former subdivision (2), which as
part of a 2003 amendment was moved to section 170.6, subdivision (a)(2),
without substantive change. (Akopyan v. Superior Court, supra, 53
Cal.App.5th at p. 1100, fn. 5.)
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[“A new trial is a re-examination of an issue of fact in the same court after a
trial and decision by a jury, court, or referee”].) The dissenting justice
asserted that “the term ‘new trial’ has a more restrictive meaning in the
criminal context than in the civil context,” and it does not extend to a
resentencing hearing. (Id. at p. 1251.)
Our Supreme Court disagreed with the majority’s reasoning and
reversed. In contrast to the broad definition of “new trial” applicable in civil
cases, the Peracchi court noted that the Penal Code defines the term more
narrowly in criminal cases. “The Penal Code defines a new trial as ‘a
reexamination of the issue in the same Court, before another jury, after a
verdict has been given.’ (Pen. Code, § 1179.) Penal Code section 1180
explains that ‘[t]he granting of a new trial places the parties in the same
position as if no trial had been had. All the testimony must be produced
anew, and the former verdict or finding cannot be used or referred to, either
in evidence or in argument . . . .’” (Peracchi, supra, 30 Cal.4th at p. 1253.)
Thus, the Peracchi court concluded that a resentencing hearing does not
constitute a new trial for purposes of section 170.6. (Peracchi, supra, at pp.
1254–1263; see id. at p. 1261 [“[W]e do not believe that the Legislature
contemplated that what constitutes a new trial in a criminal case for the
purposes of section 170.6 would be defined by the law in civil cases—
especially when a specific Penal Code section defines the term ‘new trial’”].)
Estrada argues the Supreme Court’s reliance on the Penal Code in
Peracchi when defining a “new trial” under section 170.6, subdivision (a)(2) is
dictum. She is mistaken. “‘[D]ictum consists of general observations of law
which go beyond the facts and issues of the case.’ (People ex rel. Dept. of
Transportation v. Yuki (1995) 31 Cal.App.4th 1754, 1773.)” (Meridian
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 702.) The
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Supreme Court held a resentencing hearing is not a “new trial” within the
meaning of section 170.6, subdivision (a)(2) based, in large part, on the Penal
Code’s definition of a “new trial.” Thus, the court’s holding is precedential,
not dictum, and we are bound to follow it. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
We also reject Estrada’s assertion that the Supreme Court in Strong
made clear that the subject hearing is akin to a court trial. In Strong, the
court held that a true finding on a felony murder special circumstance
allegation, rendered before the decisions in Banks, supra, 61 Cal.4th 788 and
People v. Clark (2016) 63 Cal.4th 522, does not preclude resentencing relief
under Penal Code section 1172.6. (Strong, supra, 13 Cal.5th at p. 703.)
Nowhere did the court make a determination that the hearing necessary to
adjudicate a petition for resentencing was a court trial. To the contrary, the
court repeatedly referenced the hearing as a resentencing.
Estrada asserts the subject hearing “more closely resemble[s] a ‘new
trial’ albeit a court trial than a resentencing hearing on remand from a direct
appeal” because (1) the prosecution must prove beyond a reasonable doubt
the petitioner is guilty of murder under the law as amended by SB 1437, and
(2) the trial court acts as an independent fact finder after considering any
additional evidence offered by the parties.
The prosecution must indeed prove beyond a reasonable doubt that the
petitioner is ineligible for resentencing, and that the parties may present
additional evidence. (Pen. Code, § 1172.6, subd. (d)(3).) However, Penal Code
section 1172.6 remains a “‘“resentencing procedure, not a new prosecution.”’”
(People v. Flint (2022) 75 Cal.App.5th 607, 618; People v. Mitchell (2022) 81
Cal.App.5th 575, 588; People v. Silva (2021) 72 Cal.App.5th 505, 520.) The
retroactive relief provided by Penal Code section 1172.6 “‘is a legislative “act
12
of lenity” intended to give defendants serving otherwise final sentences the
benefit of ameliorative changes to applicable criminal laws and does not
result in a new trial or increased punishment.’” (People v. Vargas (2022) 84
Cal.App.5th 943, 952.) Unlike a new trial, which implicates certain
constitutional protections such as the right to a jury trial, the subject hearing
does not involve those constitutional guarantees. (Peracchi, supra, 30 Cal.4th
at p. 1256; see People v. Myles (2021) 69 Cal.App.5th 688, 704; People v.
James (2021) 63 Cal.App.5th 604, 609; People v. Anthony (2019) 32
Cal.App.5th 1102, 1156.)
In conducting the hearing, the parties are not placed in the same
position as if no trial had occurred. (See Pen. Code, § 1180.) At the hearing,
the trial court may look at the record of conviction to determine whether the
petitioner is entitled to relief under the law as amended by SB 1437. (See
People v. Lewis (2021) 11 Cal.5th 952, 971.) The parties are not required to
produce all testimony anew and are not foreclosed from using the jury’s
verdicts or findings. In particular, a trial court is bound by a jury’s prior
finding that the petitioner did not act with reckless indifference to human life
or was not a major participant in the felony. (Pen. Code, § 1172.6, subd.
(d)(2).) The court may also consider evidence previously admitted so long as
it is admissible under current law, including witness testimony, stipulated
evidence, and matters judicially noticed. (Id., subd. (d)(3).) In addition, it
may consider the procedural history recited in any prior appellate opinion.
(Ibid.) Unlike a new trial, if the court determines the petitioner is guilty of
murder or attempted murder beyond a reasonable doubt under the current
law, their current sentence would remain in effect, and the petitioner need
not be resentenced but remanded to continue serving the term previously
imposed. (See People v. Guillory (2022) 82 Cal.App.5th 326, 335–336.)
13
There is no indication, despite the constitutional and practical
distinctions between a new trial and the subject hearing, that the Legislature
intended such a hearing on remand be considered a new trial under section
170.6, subdivision (a)(2). (See People v. Clements (2022) 75 Cal.App.5th 276,
297 [the Legislature did not choose to grant qualifying offenders under Penal
Code section 1172.6 a new trial, but rather the Legislature chose a procedure
“requiring trial judges to decide the critical factual questions based—at least
in some cases—on a cold record”].) To the contrary, the legislative history of
section 170.6, subdivision (a)(2) “does not support the assertion that the
Legislature intended to permit a [peremptory] challenge at any hearing on
remand in a criminal case.” (Peracchi, supra, 30 Cal.4th at pp. 1261–1262.)
Initially, the language of this subdivision “apparently would have applied to
any hearing on remand, but that language was amended to refer instead to
cases in which the trial judge was assigned to conduct a new trial.” (Id. at p.
1262.) Thus, section 170.6, subdivision (a)(2) was not intended “to counter
every possible situation in which it might be speculated that a court could
react negatively to a reversal on appeal.” (Id. at p. 1263.) That said, any
potential bias “is restricted by state constitutional limits on the imposition of
an aggregate sentence lengthier than that originally imposed.” (Id. at p.
1257.)
Although the circumstances in Andrew M. v. Superior Court (2020) 43
Cal.App.5th 1116 (Andrew M.), differ from those in this case, the Court of
Appeal’s application of the reasoning in Peracchi is instructive. In Andrew
M., the court conditionally reversed the juvenile defendant’s convictions in
adult criminal court and remanded for a transfer hearing in juvenile court
14
under Proposition 57, which became effective while his appeal was pending. 4
(Id. at p. 1122.) When the case was remanded, the defendant filed a
peremptory challenge. The trial court denied the challenge, finding that the
transfer hearing was not a “new trial” under section 170.6. The defendant
sought writ relief, and the Court of Appeal denied the petition. (Id. at p.
1120.) The court reasoned that the conditional reversal and remand for the
transfer hearing did not disturb the verdict or vacate the sentence. (Id. at p.
1126.) Thus, the parties are not “‘in the same position as if there had been no
trial.’” (Ibid.) Like the transfer hearing in Andrew M., the trial court’s
function at the subject hearing “‘is not to go back and revisit any factual or
legal terrain that has thus far been traversed, but to go forward,’ to perform a
judicial task required by new legislation.” (Id. at p. 1127.)
We conclude the hearing conducted after a reversal and remand of a
trial court’s order denying a petition for resentencing is not a “new trial”
within the meaning of section 170.6, subdivision (a)(2). Therefore, the trial
court properly denied Estrada’s peremptory challenge.
“Our conclusion avoids entangling courts in constitutional questions
that are unique to criminal trials and that could arise if a resentencing
4 For background, “‘“[a]mong other provisions, Proposition 57 amended
the Welfare and Institutions Code to eliminate direct filing by prosecutors.”’”
[Citation.] When a minor has been charged in the juvenile court with a
felony allegedly committed when the minor was 16 years of age or older, the
prosecution may move ‘“to transfer the minor from juvenile court to a court of
criminal jurisdiction.”’ [Citation.] The prosecution has the burden to
establish ‘by a preponderance of the evidence the minor is not a suitable
candidate for treatment under the juvenile court system.’ [Citation.]”
(Andrew M., supra, 43 Cal.App.5th at p. 1123.) At the transfer hearing, the
court must consider several factors and the court has broad discretion in
weighing those factors. (Ibid.) Proposition 57 applied retroactively to cases,
like Andrew M.’s, that were pending when the legislation became effective.
15
hearing were to be considered a new trial. [It] avoids the obvious practical
difficulties [of] a mandatory case-by-case analysis of the question whether a
particular sentencing hearing on remand will involve the exercise of trial
court discretion sufficient to qualify the proceeding as a new trial . . . and a
burdensome requirement that a new sentencing judge reexamine the factual
basis for the verdict in order to perform his or her sentencing function.”
(Peracchi, supra, 30 Cal.4th at p. 1263.)
DISPOSITION
The petition for writ of mandate is denied. The stay of proceedings is
lifted upon finality of this opinion.
CERTIFIED FOR PUBLICATION
ZUKIN, J.
WE CONCUR:
CURREY, P. J.
COLLINS, J.
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