Filed 2/7/20 Penuelas v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

SAUL PENUELAS,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

G057733

(Super. Ct. No. 94SF0029)

O P I N I ON

Original proceedings; petition for a writ of prohibition/mandate to challenge an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Petition granted.

Sharon Petrosino, Public Defender, Sara Ross, Assistant Public Defender, Mark Kim, Deputy Public Defender, for Petitioner.

Todd Spitzer, District Attorney, and George Turner, Deputy District Attorney, for Real Party in Interest.

The sole issue here is whether a peremptory challenge pursuant to Code of Civil Procedure section 170.6 (Section 170.6) filed by Saul Penuelas’s codefendant

24 years ago precludes Penuelas from now filing his own Section 170.6 motion in proceedings on his Penal Code section 1170.95 petition. As we explain below, we conclude Penuelas must be given an opportunity to demonstrate his interests were substantially adverse to his codefendant’s interests. We grant the petition.

FACTS

In 1994, an information charged Penuelas and Rogelio Solis with murder, conspiracy, six counts of assault with a deadly weapon, and throwing a substance at a vehicle, and alleged gang enhancements as to each count. Before trial, Solis filed a Section 170.6 motion to challenge Judge Robert Fitzgerald. Judge Richard Luesebrink presided at trial. The jury convicted Penuelas and Solis of all counts and found true the enhancements. We affirmed the judgments. (People v. Saul Penuelas and Rogelio Solis (Oct. 14, 1999, G021570 [nonpub. opn.].)

Effective January 1, 2019, Senate Bill No. 1437 (S.B. 1437) amended sections 188 and 189 and added section 1170.95 to modify the law relating to accomplice liability for murder. In January 2019, Solis filed a section 1170.95 petition for resentencing. The Orange County District Attorney (OCDA) filed a response, arguing section 1170.95 was unconstitutional and Solis was ineligible for relief. Solis filed a reply, contending section 1170.95 was constitutional and requested the court grant relief. In March 2019, Judge Cheri T. Pham denied Solis’s petition concluding section 1170.95 was unconstitutional. Solis’s appeal is pending. (People v. Solis, case No. G057510.)

On April 12, 2019, Penuelas filed a section 1170.95 petition. On April 18, 2019, Judge Kimberly K. Menninger assigned the matter to Judge Pham “for purposes of the petition filed per . . . [s]ection 1170.95.” On April 25, 2019, Judge Menninger issued a nunc pro tunc order indicating the April 18, 2019, assignment was for all purposes. The OCDA filed a response, arguing section 1170.95 was unconstitutional and Penuelas was ineligible for relief.

On April 30, 2019, Penuelas filed a Section 170.6 motion to disqualify Judge Pham. The next day, Judge Pham denied the motion, ruling as follows: “1. A peremptory challenge pursuant [to] . . . Section 170.6 has already been filed in this case on December 9, 1994[,] against Judge Robert Fitzgerald on behalf of the defense, filed by . . . co-defendant . . . Solis, who was tried jointly with [Penuelas;] [¶] 2. As a matter of first impression, this court deems this [p]etition a continuation of the trial because it seeks re-sentencing under the new statute, and for all intents and purposes, it would have to be assigned to the judicial officer who presided over the trial if that judge were available. In this case, the trial judge, Judge Richard Luesebrink, is no longer available. [¶] 3. As a continuation of the trial then, only one peremptory challenge would be available to each side in this case as . . . Section 170.6 specifically provides that ‘only one motion for each side may be made in any one action or special proceeding.’ Based on this court’s review of the record of conviction, including the unpublished appellate opinion from the Fourth District Court of Appeal, Division Three, affirming [Penuelas’s] conviction for second degree murder and conspiracy to commit an assault by means of force likely to produce great bodily injury and gang enhancements, [Penuelas] has failed to make a factual showing that his interests were adverse to codefendant Solis, and the court cannot find any facts to support an adverse interest to warrant permitting another peremptory challenge.”

Penuelas filed a writ of prohibition/mandate in this court. In his petition, Penuelas argued the trial court erred by denying his Section 170.6 motion because proceedings on his section 1170.95 petition was not a continuation from trial, and if it was, his interests are adverse to Solis. We denied his petition. (Penuelas v. Superior Court (May 30, 2019, G057733) [nonpub. order].)

Penuelas filed a petition for review in the California Supreme Court. That court granted the petition and transferred the matter to this court with directions to vacate our order denying the petition for writ of mandate and to issue an order directing respondent superior court to show cause why the relief Penuelas sought should not be granted. (Penuelas v. Superior Court, review granted Aug. 14, 2019, S256157.) We complied with that order. (Penuelas v. Superior Court (Sept. 26, 2019, G057733) [nonpub. order].)

The OCDA filed a return, arguing Penuelas’s section 1170.95 petition was untimely and a continuation from trial, and he did not establish his interests were adverse to Solis. Penuelas filed a reply disputing each contention.

DISCUSSION

I. Timeliness

The OCDA argues Penuelas’s Section 170.6 motion was untimely because if the all-purpose assignment was ineffective, it was too early, but if the all-purpose assignment was effective, it was too late. It was timely.

Pursuant to Section 170.6, subdivision (a)(2)’s all-purpose assignment rule, the peremptory challenge must be made within 10 days after notice of the all purpose assignment “[i]f [the peremptory challenge is] directed to the trial of a criminal cause.” Section 1170.95 is a postjudgment resentencing proceeding and not “the trial of a criminal cause.” Thus, the all-purpose assignment rule does not apply, and we must look to Section 170.6’s other provisions.

Section 170.6, subdivision (a)(2), also provides as follows: “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. In the case of trials or hearings not specifically provided for in this paragraph, the procedure specified herein shall be followed as nearly as possible.” Thus, in a postjudgment proceeding, a peremptory challenge is timely if made before the commencement of the hearing (§ 170.6, subd. (a)(2)), or before the court considers and evaluates the petition before granting relief (Maas v. Superior Court (2016) 1 Cal.5th 962, 977-978 (Maas)). In this case, Penuelas filed his motion on April 30, 2019, before any hearing or the court considered and evaluated the petition.

The OCDA relies on Grant v. Superior Court (2001) 90 Cal.App.4th 518, 525 (Grant), to argue it was too early. In that case, the court held, “[S]ection 170.6 does not permit a peremptory challenge to be filed or accepted when, as here, no trial or hearing involving a contested issue of law or fact is pending.” (Grant, supra,

90 Cal.App.4th at pp. 522, 525.)

It is true no hearing was on calendar in Judge Pham’s court. But in Maas, supra, 1 Cal.5th at pages 976-979, our Supreme Court held a habeas corpus petitioner can bring a Section 170.6 challenge upon filing a petition for writ of habeas corpus without the trial court having issued an order to show cause. The Maas court did not discuss Grant. But in the unique procedural posture of section 1170.95 proceedings where trial judges quickly rule on these petitions in chambers without counsel present, we conclude the fact a hearing was not on calendar is not dispositive. We note that in addition to Section 170.6, subdivision (a)(2)’s detailed time limits, it provides, “In the case of trials or hearings not specifically provided for in this paragraph, the procedure specified herein shall be followed as nearly as possible.” Penuelas complied with Section 170.6, and his section 1170.95 petition was timely.

Assuming for purposes of argument the all-purpose assignment rule was effective here, Section 170.6’s 10-day rule applied. Because of Judge Menninger’s April 25, 2019, nunc pro tunc order, the all-purpose assignment to Judge Pham was effective April 18, 2019. (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 501 [“gives effect to the ruling retroactively from the date cited in the nunc pro tunc order”].) Therefore, Penuelas’s Section 170.6 motion was due on Sunday, April 28, 2019, which meant the deadline was Monday, April 29, 2019. (Cal. Rules of Court, rule 1.10(b).)

The registrar of actions indicates Judge Menninger’s nunc pro tunc order was sent to counsel by e-mail. California Rules of Court, rule 2.251(k) states a court may electronically serve documents as provided in Code of Civil Procedure section 1010.6. That section provides a two-day extension for electronic service. (Code Civ. Proc., § 1010.6, subd. (a)(4)(B).) Penuelas filed his Section 170.6 motion on Tuesday, April 30, 2019, within two days of its due date. It was timely.

II. Section 170.6 & Continuation Rule

Section 170.6 provides that no superior court judge shall try any civil or criminal action involving a contested issue of law or fact when it is established that the judge is prejudiced against any party or attorney appearing in the action. (§ 170.6, subd. (a)(1).) We must liberally construe Section 170.6 to allow a peremptory challenge, and deny a peremptory challenge only when Section 170.6 forbids it. (Maas, supra, 1 Cal.5th at p. 973.) “We review the trial court’s denial of the [S]ection 170.6 challenge for an abuse of discretion.” (D.M. v. Superior Court (2011) 196 Cal.App.4th 879, 886.)

“[S]ection 170.6 requires that disqualification motions be raised no later than commencement of the trial or hearing (§ 170.6, subd. (a)(2)), and limits each side to only one disqualification motion ‘in any one action or special proceeding.’ (§ 170.6, subd. (a)(4).)” (Maas, supra, 1 Cal.5th at p. 979, italics added.) The one motion limitation applies even when there is “more than one defendant or similar party appearing in the action or special proceeding.” (§ 170.6, subd. (a)(4).) “The petitioner is . . . entitled to peremptorily challenge the assigned judge under [S]ection 170.6, so long as all of the procedural requirements of that provision have been satisfied, including the requirement that the assigned judge not have participated in petitioner’s underlying criminal action.” (Maas, supra, 1 Cal.5th at p. 983, italics added.)

“Case law has long established a further limitation . . . . In some situations . . . when a second action or special proceeding ‘involves “substantially the same issues”’ and ‘“matters necessarily relevant and material to the issues”’ in the original case, the second action or proceeding is considered a continuation of the earlier action or proceeding for purposes of [S]ection 170.6. [Citation.]” (Maas, supra, 1 Cal.5th at

p. 979.) “A proceeding is a continuation of the prior or original action, rather than a separate or independent action, if ‘it involves “‘substantially the same issues’” and “‘matters necessarily relevant and material to the issues involved in the [original] action.’” [Citation].’ [Citation.]” (Bravo v. Superior Court (2007) 149 Cal.App.4th 1489, 1494.)

Here, Judge Pham ruled that as a matter of first impression the section 1170.95 petition was a continuation of the 1996 trial because Penuelas sought resentencing. We note though the Maas court opined that “when the assigned judge had no involvement in the petitioner’s criminal action, denying the petitioner the right to peremptorily challenge a judge he or she believes is prejudiced would be contrary to the intent and purpose of [S]ection 170.6. [Citation.]” (Maas, supra, 1 Cal.5th at

pp. 980-981.) As Judge Pham acknowledged, Judge Luesebrink, who was best suited to rule on the petition, was not available. Because Judge Pham was not involved in the 1996 trial, there was no risk Penuelas was trying to “disqualify[] the judge most familiar with the facts of the case in the hopes of obtaining a more favorable result. [Citations.]” (Maas, supra, 1 Cal.5th at p. 979.) However, we need not decide whether the continuation rule is applicable because Judge Pham should have provided Penuelas the opportunity to demonstrate he had substantially adverse interests to Solis.

III. Substantially Adverse Interests

“[I]n certain circumstances, [S]ection 170.6 authorizes the exercise of a peremptory challenge by more than a single plaintiff or defendant. (The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1033-1034 (Home Ins.).) A party may be considered to be on a different side than other parties with which it is joined when the joined parties have interests that are “substantially adverse.” (Johnson v. Superior Court (1958) 50 Cal.2d 693, 700.) The party seeking a subsequent disqualification of the trial judge has the burden of demonstrating its interests are substantially adverse to those of a coparty that previously exercised a peremptory challenge—substantially adverse interests are not presumed. (Home Ins., supra, 34 Cal.4th at pp. 1035-1036.) It is a factual determination. (Id. at p. 1036.) “[A] party that seeks to exercise a subsequent peremptory challenge on the ground that . . . it is on a different side from another party despite appearances to the contrary, is required to provide evidence of a conflict to enable the trial court to decide whether the interests of the joined parties are actually substantially adverse. [Citation.]” (Id. at p. 1037.)

The classic example of adverse interests in the criminal setting is when one defendant attempts to avoid conviction by shifting responsibility to the other defendant. (Pappa v. Superior Court (1960) 54 Cal.2d 350, 354-355.) S.B. 1437 “ensure[s] that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. [Citations.]” (People v. Anthony (2019)

32 Cal.App.5th 1102, 1147.)

In his Section 170.6 motion, Penuelas asserted “Judge Cheri Pham is prejudiced against [Penuelas] and that [he] cannot have a fair proceeding before [Judge] Pham.” His counsel’s declaration states, “Pursuant to [Section] 170.6, Judge . . . Pham, the judge before whom the case is currently assigned, is prejudiced against . . . Penuelas so that I believe . . . Penuelas cannot have a fair proceeding in front of Judge Pham.” Judge Pham’s ruling demonstrates she concluded both Penuelas’s motion failed to include sufficient facts establishing adverse interests with Solis, and she reviewed our prior opinion, People v. Saul Penuelas and Rogelio Solis, supra, G021570, and could not find sufficient facts to support such a finding.

In his petition to this court, Penuelas provides a lengthy explanation as to why his interests are substantially adverse to Solis’s interests. Penuelas states both he and Solis are challenging their second degree murder convictions “by shifting the blame to another codefendant.” He provides a detailed recitation of the underlying facts—ten to fifteen gang members threw a barrage of projectiles including rocks, beer bottles, paint rollers, and a metal rod at high school students and the victim died when a paint roller penetrated a car window and lodged into his skull. But he did not allege any of these facts in his Section 170.6 motion—at trial, neither he nor Solis tried to shift responsibility to the other. (People v. Saul Penuelas and Rogelio Solis, supra, G021570, pp. 4-5.)

Nevertheless, we conclude Penuelas must be given the opportunity to demonstrate his interests were substantially adverse to Solis’s interests. Judge Pham’s ruling demonstrates the adverse interests exception to Section 170.6’s one-challenge per side rule was at issue. Instead of ruling on Penuelas’s Section 170.6 motion in chambers without counsel present, Judge Pham should have permitted briefing or scheduled a hearing to provide Penuelas the opportunity to establish his interests were substantially adverse to Solis’s interest before ruling on the motion. Thus, Penuelas must be given an opportunity to make that showing.

DISPOSITION

The petition is granted.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

THOMPSON, J.