CCP 170.6 Challenge
Category > CCP 170.6 Challenge
Updated 2/22/2024The prosecution’s 170.6 challenge to the judge who had ordered a response to the habeas petition was untimely.Defendant filed a habeas corpus petition challenging his conviction. The case was sent from the Central District of Los Angeles to the Torrance courthouse and assigned to Judge Clarke for all purposes. More than a month after Judge Clarke requested an informal response, the prosecution filed a Code of Civil Procedure section 170.6 challenge against the judge. The trial court properly ruled the 170.6 motion was untimely, given the rule that such a challenge must be filed within 10 days of the all purpose assignment.id: 27023
The trial court erred in granting the prosecution’s section 170.6 motion to challenge the judge that was made immediately after the dismissed case had been refiled and assigned to the same judge. The trial judge granted the prosecution's motion to dismiss the case for insufficient evidence. The next day, the prosecution refiled the case under a new number and it was assigned to the original judge. The superior court then granted the prosecutor’s motion to disqualify the judge under Code of Civil Procedure section 170.6. However, the court erred in allowing the challenge that was made solely to evade the effect of the judge’s rulings, and because the second case was merely a continuation of the first, the motion was untimely.id: 25612
A habeas petitioner is entitled to know the judge assigned to the case and can file a peremptory challenge as long as it’s not against the judge who presided over the underlying case. A petitioner who requests the name of the judge assigned to examine his or her habeas corpus petition is entitled to notice of that assignment, and also is entitled to peremptorily challenge the assigned judge, as long as all of the procedural requirements of section 170.6 have been satisfied, including the requirement that the assigned judge not have participated in the petitioner’s underlying criminal action.id: 24958
The trial court did not err by summarily rejecting the request to disqualify the judge where the motion was based on false allegations that had previously been rejected. Defendant who had engaged in several delay and sidetracking tactics filed a motion to disqualify the trial judge for corruption and personal animosity towards the defendant. The trial court did not err by denying the motion without sending it to another court for an evidentiary hearing. The motion was defective, largely duplicative and based on false allegations that had been rejected at prior hearings.id: 23809
Habeas petitioner may use a peremptory challenge against the judge assigned to the petition. Where a defendant collaterally attacks his criminal convictions and sentences by way of a petition for writ of habeas corpus and the matter is assigned to a judge other than the original trial judge, the defendant may assert a peremptory challenge under Code of Civil Procedure sections 176.6 to the assigned judge. id: 23907
Judge improperly denied the section 170.6 challenge where he had not yet ruled on the merits, but rather on discovery motions.The trial court erred in striking the Code of Civil Procedure section 170.6 peremptory challenge on the ground that he had already ruled on contested fact issues related to the merits, since the only factual determinations he had made were in connection with discovery motions not relating to the merits. id: 20922
Motion to disqualify the judge filed one day before the arraignment was not untimely.The denial of the public defender's motion to disqualify the judge was contrary to law. The motion was denied as untimely where it was filed one day before the scheduled arraignment. The disqualification motion was timely under the Code of Civil Procedure section 170.6 ten-day/five rule because the arraignment was assigned to a department not to a particular judge. Even if the motion were originally timely, it was timely as to the continued arraignment date (six days later).id: 16428
170.6 challenge of judge must be filed within 10 days after commencement of the action in superior court, rather than 10 days after the filing of the complaint with the magistrate.Appellant's preliminary hearing was conducted on September 18, 1990. At its conclusion arraignment was set for October 2, 1990 in a specific department. For purposes of the Code of Civil Procedure section 170.6 challenge to the Superior Court judge, the action against appellant was commenced on October 2 by the filing in Superior Court of the felony information against him. The criminal proceeding was not commenced by the filing of the complaint with the magistrate. Hence, appellant was not required to file his challenge of the judge until 10 days after October 2.id: 12140
Police department may not exercise a peremptory challenge of a judge assigned to hear a motion for disclosure of an officer's personal records.The police department has no right or standing to disqualify a judge assigned to hear a defendant's motion for disclosure of a peace officer's personal or otherwise confidential records and other information in the possession of the police department.id: 12156
Peremptory challenge of judge was timely notwithstanding that the case had been assigned to his department for all purposes several months earlier.A criminal case was assigned to a department of the Los Angeles Superior Court for all purposes in February 1991. The case was set for trial on December 4, 1991, at which time it was trailed to December 9, 1991. Immediately thereafter, petitioner filed a peremptory judicial challenge against the judge presiding in that department. Such motions must be filed at least five days before the date set for trial if the judge is known at least ten days before trial. The date of the initial assignment to the department for all purposes did not initiate the running of the filing period because of the possibility the case could be reassigned prior to trial. The date to which the trial was continued was the operative date and petitioner's motion was therefore timely.id: 12155
A defendant is entitled to timely demand a new judge if a new trial is granted as part of writ relief.Pursuant to Code of Civil Procedure section 170.6 a defendant is entitled to a timely demand for a new judge if a new trial is granted following a successful appeal. A defendant is also entitled to a different judge if a new trial is granted as part of writ relief.id: 12142
A defendant may challenge the judge who presided over the preliminary hearing.The defendant sought to challenge at trial the judge who conducted the preliminary hearing. The court found the Code of Civil Procedure section 170.6 challenge was untimely because the preliminary hearing involved a determination of contested fact issues relating to the merits of the case. However, a preliminary hearing is a probable cause hearing which does not involve a determination of contested factual issues. Therefore, the challenge was not untimely.id: 15853
Court erred in denying the motion to disqualify the judge after finding the refiled case was a continuation of the previously dismissed case.One of the defendants timely moved to disqualify the trial judge and the case was reassigned. When the last day on which the case could be tried arrived and the prosecutor was unable to proceed, the case was dismissed, then refiled and assigned to the same judge to whom it had been reassigned. The other defendant then moved to disqualify the judge, who denied the motion on the ground that the refiled action was a "continuation" of the dismissed action. However, the court erred in denying the motion since the refiled action was not a continuation of the previously dismissed case.id: 15854
The trial court erred in failing to immediately respond to defendant's section 170.6 challenge and by issuing a nunc pro tunc order to rectify its earlier failure to act.Following felony arraignment on the domestic violence count, the court assigned the case to itself for all purposes. Defendant filed a motion to disqualify the court under Code of Civil Procedure section 170.3. The court took the matter under submission and later issued a nunc pro tunc order denying the motion as untimely. The trial court erred in failing to respond immediately to defendant's section 170.6 motion, and by improperly denying the motion as untimely. Moreover, the court issued an unlawful nunc pro tunc order in an attempt to rectify its failure to act when the motion was first filed.id: 18122
Updated 3/7/2024170.6 challenge to the judge assigned to review the habeas petition challenging the parole denial was untimely under the all purpose assignment rule.Defendant filed a habeas corpus petition challenging a decision by the Board of Parole Hearings denying him parole. He requested that the superior court inform him of the identity of the judge assigned to consider the petition. The court notified him of the judge who was assigned “for all purposes.” He later challenged the judge under Code of Civil Procedure section 170.6, but his challenge was denied as untimely. The superior court’s order naming the judge assigned to the petition constituted as all purpose assignment under section 170.6, subd.9a)(2), and the challenge was not timely under the statutes’s all purpose assignment rule.id: 26288
Updated 3/5/2024The trial court erred in granting the 170.6 challenge where the judgment had only been conditionally reversed so that the court could undertake the second and third steps of the Batson/Wheeler analysis. Defendant filed a Batson/Wheeler motion after six of seven Hispanic prospective jurors were challenged. The motion was denied. The case was conditionally reversed on appeal for the limited purpose of conducting the second and third steps of the Batson/Wheeler inquiry. Defendant then filed a Code of Civil Procedure section 170.6 challenge against the trial judge. However, the judge had not yet been “assigned to conduct a new trial.” Therefore, the court should have waited to rule on the peremptory challenge until it conducted the inquiry, and then grant disqualification if it ordered a new trial. id: 26992
Updated 2/24/2024A transfer hearing under Prop 57 is not a “new trial” that would allow the defendant a chance to use a section 170.6 challenge to the judge.A conditional reversal and limited remand to the juvenile court to conduct a transfer hearing under Prop 57 does not constitute a “new trial” for purposes of exercising a Code of Civil Procedure section 170.6 challenge.id: 26601
Updated 2/23/2024The trial judge was disqualified from considering a petition to dismiss prior conviction enhancements under SB 1393 where he granted the motion to disqualify himself from the original case in 2006.Defendant filed a petition to dismiss his five year terms for prior serious felony convictions under newly enacted SB 1393. Having granted the motion to disqualify himself from the underlying case in 2006, the trial judge was disqualified considering the new petition under Code of Civil Procedure section 170.6 since the issues raised in the new petition were a continuation of the underlying action.id: 26940
Updated 2/4/2024170.6 challenge filed 40 days after the Supreme Court returned the habeas case to the superior court was untimely. Defendant filed a habeas corpus petition in the superior court alleging the ineffective assistance of counsel at sentencing. The trial court summarily denied the petition. The California Supreme Court later issued an order to show cause returnable to the superior court on the same claim. 40 days later, the defendant filed a peremptory challenge to the judge under Code of Civil Procedure section 170.6. However, the challenge was subject to the 10-day deadline for criminal cases assigned to a judge for all purposes. The petition was properly denied as untimely.id: 27363
Updated 2/2/2024The habeas petition which challenged conditions of confinement during an ongoing criminal case, was a continuation of that case and the trial court properly denied the 170.6 challenged as untimely.Defendant awaiting trial, had a rare skin condition that he argued was not being properly addressed in the jail. The trial judge had made some accommodation but defendant sought more. He filed a petition for writ of habeas corpus arguing the jail’s failure to properly address his condition was cruel and unusual punishment, and violated the ADA. He filed a Code of Civil Procedure section 170.6 challenge against the trial judge, which the judge denied as untimely. Because defendant injected issues regarding the conditions of his confinement into an ongoing criminal case, the habeas proceeding was a continuation of the criminal case, and the judge properly denied the 170.6 challenged as untimely.id: 27880
Updated 1/31/2024A resentence hearing under section 1172.6 is not a “new trial” that would entitle defendant to a section 170.6 peremptory challenge.The hearing required in Penal Code section 1172.6(d)(3), after reversal and remand, is not a new trial within the meaning of Code of Civil Procedure section 170.6(a)(2). Defendant was not entitled to a postappeal peremptory challenge of the judge who denied the petition.id: 28040
Updated 1/31/2024Defendant’s request to challenge the judge who summarily denied her request for resentencing under section 1172.6 was properly denied as untimely.Remand for further proceedings held pursuant to Penal Code section 1172.6 does not constitute a remand for a “new trial” as contemplated by Code of Civil Procedure section 170.6(a)(2). Defendant’s challenge to the trial judge who denied her request for resentencing was properly denied as untimely.id: 28055
Updated 1/29/2024The trial court properly denied defendant’s section 170.6 challenge against the judge as the proceedings on remand addressing the section 1172.6 petition did not constitute a “new trial”.The trial court denied defendant’s Penal Code section 1172.6 petition after an evidentiary hearing. The decision was reversed on appeal and the matter was remanded for new proceedings and assigned to the new judge. Defendant filed a peremptory challenge pursuant to Code of Civil Procedure section 170.6 seeking to disqualify the judge. The motion was properly denied because the new proceedings on remand did not constitute a “new trial” within the meaning of section 170.6(a)(2).id: 28096
The court erred in denying the section 170.6 peremptory challenge where the prosecution filed a new case.The prosecution dismissed the underlying murder prosecution, and then refiled the same day along with a peremptory challenge against the trial judge under Code of Civil Procedure section 170.6. The court refused to honor the challenge calling it untimely, and suggesting the prosecution was forum shopping. However, the challenge had to be honored where this was a new case and the prosecution wasn’t trying to avoid a particular ruling. id: 26252
Defendant’s motion to disqualify a judge for bias was not timely where it was based on facts that happened a month before the challenge. Defense counsel filed a peremptory challenge under Code of Civil Procedure section 170.6, against the judge to whom the case had been assigned, resulting in the assignment of the case to a second judge. Counsel later filed a motion to recuse that judge under section 170.1, claiming the judge had been biased against counsel. However, the second petition was untimely and did not recite any new facts that had not been discussed a month earlier.id: 25626
The superior court erred by denying the DA’s use of section 170.6 to disqualify a judge from presiding over all criminal cases based on his rulings in three murder cases.The Orange County Superior Court refused to grant a Code of Civil Procedure section 170.6 challenge filed by the District Attorney because the DA invoked an improper blanket challenge to a particular judge that substantially disrupted court proceedings. However, blanket papering does not violate the separation of powers doctrine even if the misuse of section 170.6 prevents a judge from hearing any criminal cases. The court granted the DA’s writ of mandate but suggested the authority requiring that result should be revisited.id: 24833
Claim that defendant was entitled to disqualify the judge from ruling on a motion was not cognizable on appeal.Defendant argued the judge was biased in determining the admissibility of his 1973 rape conviction and that she should have disqualified herself from deciding the issue. However, defendant’s claim that he was statutorily entitled to disqualify the judge was not cognizable on appeal because a determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the court of appeal sought only by the parties to the proceeding within 10 days of notice to the parties. id: 23767
A superior court judge may not challenge his or her disqualification order.The exclusive means of review of a disqualification order is by a petition for a writ of mandate filed by one or more of the parties to the underlying proceeding in accordance with Code of Civil Procedure section 170.3, subd.(d). A superior court judge against whom a statement of disqualification has been filed is not a party to the proceeding within the meaning of that provision. Therefore, a disqualified judge may not file a petition for a writ of mandate challenging the disqualification order, and the Court of Appeal lacks authority to entertain such a petition.id: 14991
A party can peremptorily challenge a judge under section 170.6, subd.(2) after the dismissal of the case is reversed on appeal.The trial court granted defendant's motion to dismiss the complaint concluding the action was barred by the statute of limitation. The Court of Appeal disagreed and reversed the order. The trial court thereafter denied the prosecutor's peremptory challenge. However, contrary to the court's reasoning, the trial constituted a new trial after remand pursuant to Code of Civil Procedure section 170.6, subd.(2).id: 16384
170.6, subd.(2) does not permit a challenge when, following a remand, the sole task left for the trial court is to resentence the defendant.A party may not challenge a trial judge pursuant to Code of Civil Procedure section 170.6, subd.(2) after an appellate court partially reverses a criminal judgment and remands the case to the trial court for potential retrial of the reversed count and for resentencing, in a case in which the prosecutor decides not to retry the charge in the reversed count. A challenge is not permitted, following such a remand, where the sole task left for the court is the resentencing.id: 17420
Where there was a genuine stipulation under section 1387.2, there was only one case for purposes of disqualifying the judge and the motion for disqualification made after the stipulation was untimely.An information was filed on May 2, 2002 and the case was assigned to a trial judge. When the case was called for trial, the prosecution was not ready. Instead of dismissing the case, the parties agreed to proceed on the existing information with the action deemed to have previously terminated for purposes of Penal Code section 1387. This procedure is authorized under section 1387.2. Defendant then sought to disqualify the trial judge. However, where there is a genuine stipulation under section 1387.2, there was only one case for purposes of section 170.6. Had defendant wanted to avoid the judge he should not have consented to the procedure. The disqualification motion was untimely and properly stricken.id: 17499
Court erred in rejecting the prosecutor's 170.6 challenge because the exception to section 170.6 pertaining to 1538.5 suppression motions does not apply to section 995 motions.In People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, the court found Penal Code section 1538.5, subd.(p) (relitigated motions to suppress must be heard by the same judge, was an implied exception to Code of Civil Procedure section 170.6. However, relitigated motions to set aside an information under Penal Code section 995 are not an implied exception to section 170.6. The prosecution may therefore issue a peremptory challenge in such a situation.id: 17677
A new peremptory challenge following a reversal on appeal is only permitted under section 170.6, subd.(a)(2) where the court is required to reexamine issues litigated in the prior proceedings.Code of Civil Procedure section 170.6, subd.(a)(2) provides that a party may use a peremptory challenge when the same trial judge is assigned to conduct a "new trial" after a reversal on appeal. The challenge may be exercised regardless of whether the party has previously used a peremptory challenge, as long as the challenge is made within 60 days after notification of the judge's reassignment. However, a procedure on remand where the court is not called upon to decide factual or legal issues is not a "new trial" within the meaning of the provision. id: 18157
The trial court erred by rejecting a published opinion dealing with practices in that department for purposes of section 170.6 challenges by claiming the opinion was not final.A published appellate court opinion addressed the issue of an "assignment for all purposes" in a particular courtroom for purposes of a peremptory challenge against the judge. In
a subsequent case, the same judge refused to follow the ruling claiming the judgment was not yet "final." This was legally erroneous as the decision was binding on the trial court until it was depublished, or review was granted. The judge's denial of the section 170.6 challenge was also wrong on the merits since her ruling on contested fact issues in similar San Joaquin County cases had no impact on this case which originated in San Luis Obispo.id: 19170
The trial court found defendant perjured himself while testifying at the suppression hearing and, while the judge was disqualified from further proceedings, that did not void his ruling on the motion.The trial court denied defendant's Penal Code section 1538.5 suppression motion. In its ruling, the court criticized defendant for perjuring himself at the hearing. That judge was later disqualified from further proceedings under Code of Civil Procedure section 170.3, subd.(c)(1). Contrary to defendant's claim, the disqualification did not void the ruling on the suppression motion as there was no evidence showing the court was biased against defendant before he testified.id: 19938
For purposes of section 170.6 challenges in juvenile cases under section 602, an assignment "for all purposes" requires either a valid order from a judge or a valid written local court rule.A purported assignment "for all purposes, including trial" to a particular judge in a particular department did not constitute a valid "assignment for all purposes" under Code of Civil Procedure section 170.6 where the purported assignment was made in the "notice of petition" by a deputy court clerk, pursuant to an informal court practice rather than a court rule or order. id: 19029
Superior court erred in disqualifying trial judge who two months earlier referred to an African-American defendant as "boy" during sentencing.Two months before the instant trial, the trial judge presided over the sentencing of an African-American male and during the course of the proceeding referred to the defendant as boy. The instant defendant was also African-American, and moved to disqualify the judge for cause pursuant to Code of Civil Procedure section 170.3, subdivision (c)(1). The superior court erred in disqualifying the judge since no person aware of all of the facts would reasonably entertain a doubt that the judge would be able to be impartial in the instant case.id: 12159
Issue of disqualification of commissioner could not be raised on appeal where defendant failed to seek writ review earlier.Defendant argued reversal of his conviction was required because the commissioner who presided over his trial had represented him at his arraignment in the same case and was therefore disqualified from serving as trial judge in the case. Although the commissioner's disqualification was one which, by statute, shall not be waived by the parties and their attorneys, defendant was precluded from obtaining review of the issue, because he failed to seek writ review as required under Code of Civil Procedure section 170.6, subd. (d).id: 15855
Peremptory challenge is not available at a hearing on a supplemental petition which alleges misconduct by a minor in violation of probation.A hearing on a supplemental petition under Welfare and Institutions Code section 777, which alleges misconduct of a minor in violation of the terms of his probation, is not a new or original proceeding, but instead is a continuation of the court's supervision over the minor. Accordingly, the peremptory challenge provision of Code of Civil Procedure section 170.6 is not available for such proceeding.id: 12154
Writ of mandate is the exclusive means by which a party may seek review of an unsuccessful peremptory challenge against a trial judge.Defendant brought a peremptory challenge motion under Code of Civil Procedure section 170.6 to disqualify her trial judge. The motion was denied as untimely. Defendant proceeded to trial and did not challenge the denial by writ of mandate under section 170.3(d). On appeal, defendant attempted to challenge the denial of her motion. However, section 170.3(d) prescribes the exclusive means of appellate review of an unsuccessful peremptory challenge motion.id: 12165
Defendant's exclusive remedy in a motion to disqualify the judge is by way of writ petition.In the trial court, defendant made a motion to disqualify the sentencing judge pursuant to Code of Civil Procedure section 170.6. On appeal, he argued the judge erroneously failed to disqualify himself. However, defendant's exclusive remedy for denial of his peremptory disqualification was to seek relief by way of petition for writ to the Court of Appeal within 10 days of notice to the parties of the decision.id: 12149
Defendant's stated intent to file a Writ of Prejudice did not constitute a motion to disqualify the judge under section 170.6.Defendant told the court he intended to file a Writ of Prejudice. The comment was not tantamount to a motion to disqualify the trial judge under Code of Civil Procedure section 170.6. Defendant sought to disqualify the judge for arbitrarily denying his motions. This suggests he was attempting to disqualify the judge for cause and not pursuant to section 170.6. Even if defendant's motion was an attempt to invoke section 170.6, it was not supported by an affidavit or a statement under oath as required.id: 12150
Denial of a judicial disqualification motion is not reviewable on appeal.Judge Conklin ruled on various pretrial motions. The case was then assigned to another judge for trial, but he was recused. The matter was then retransferred to Judge Conklin. Defendant filed a peremptory challenge under Code of Civil Procedure section 170.6. The motion was denied as untimely. Defendant's petition for writ relief in the Court of Appeal was summarily denied. Defendant's peremptory challenge was not reviewable on appeal. Litigants challenging denial of a judicial disqualification motion must seek mandate as provided in section 170.3, subd(d) and this expedited procedure is the exclusive means for reviewing an unsuccessful peremptory challenge filed under section 170.6.id: 12151
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245