Peracchi v. Superior Court

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

The dissenting justice, however, criticizing the Hendershot and Stegs decisions, asserted that “nothing in the history of the 1985 amendment. . . suggests] 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.

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.

As a matter of practice, when a reviewing court identifies error relating solely to sentencing, it ordinarily does not reverse the judgment of conviction or remand for a new trial. Rather, typically, it simply remands for resentencing. (See, e.g., People v. Fuhrman (1997) 16 Cal.4th 930 , 944 [ 67 Cal.Rptr.2d 1 , 941 P.2d 1189 ]; People v. McGarry (2002) 96 Cal.App.4th 644 , 653 [ 117 Cal.Rptr.2d 475 ]; People v. Trapps (1984) 158 Cal.App.3d 265 , 273 [ 204 Cal.Rptr. 541 ].) Even when reviewing courts have found error requiring the reversal of some part of the judgment of conviction, they frequently—as in this case—issue an order that calls for a new trial if the prosecutor determines to retry the reversed count or, in the alternative, that calls simply for a resentencing hearing in the event the prosecutor decides not to retry the reversed count. (See, e.g., People v. Edwards (1985) 39 Cal.3d 107 , 118 [ 216 Cal.Rptr. 397 , 702 P.2d 555 ]; People v. Jones (1997) 58 Cal.App.4th 693 , 720 [ 68 Cal.Rptr.2d 506 ]; People v. Landis (1996) 51 Cal.App.4th 1247 , 1255-1256 [ 59 Cal.Rptr.2d 641 ].)

Such a routine order remanding for resentencing does not necessarily operate even to vacate the original sentence, let alone constitute an order for a new trial—that is, a proceeding at which “the parties [are] in the same position as if no trial had been had” and in which “[a]ll the testimony must be produced anew.” (Pen. Code, § 1180.) We have explained that when a reviewing court determines that resentencing is necessary, it may remand the matter for resolution of factual questions without requiring that the defendant once again be arraigned for imposition of judgment and sentencing. (People v. Rodriguez (1998) 17 Cal.4th 253 , 258 [ 70 Cal.Rptr.2d 334 , 949 P.2d 31 ].) We also have explained that if, after a limited remand involving the sentence, “the trial court decidefs] not to exercise its discretion to modify the original sentence, that sentence would remain in effect, and the defendant need not be resentenced but should be remanded to continue serving the term previously imposed.” (People v. Buckhalter (2001) 26 Cal.4th 20 , 35 [ 108 Cal.Rptr.2d 625 , 25 P.3d 1103 ], italics omitted.) Even when the trial court on remand exercises its discretion and modifies the sentence, the original sentence is not viewed as void ab initio and the defendant’s incarceration in state prison under the original sentence is not considered presentence custody. (Id. at p. 36.) Accordingly, a remand for resentencing—a

Moreover, once an actual new trial is granted, such constitutional issues as the defendant’s right to trial by jury, to proof beyond a reasonable doubt, and to the protection of the double jeopardy clause are implicated. (See, e.g., Burks v. United States (1978) 437 U.S. 1 , 18 [ 98 S.Ct. 2141 , 2151, 57 L.Ed.2d 1 ]; People v. Hatch (2000) 22 Cal.4th 260 , 272 [ 92 Cal.Rptr.2d 80 , 991 P.2d 165 ].) When an ordinary sentencing determination is reconsidered in a noncapital case, on the other hand, these rights are not involved and the ensuing proceeding has not been considered as constituting a new or second trial that would be barred by the double jeopardy protection of the state and federal Constitutions. (People v. Hernandez (1998) 19 Cal.4th 835 , 840, 842-843 [ 80 Cal.Rptr.2d 754 , 968 P.2d 465 ] [also noting the existence of constitutional protection from “fundamentally unfair sentencing proceedings, including vindictive reconsideration of sentencing issues”].)

There is no indication that, despite the procedural and practical distinctions between a new trial and a resentencing hearing explained above, and the constitutional implications of denominating a hearing a “new trial,” the Legislature nonetheless intended that a sentencing hearing on remand be considered a new trial for the purpose of the language added to section 170.6, subdivision (2) in 1985.

We also deem it improbable, in the absence of evidence to the contrary, that the Legislature intended to disturb our reviewing courts’ practice of remanding cases for resentencing on the assumption that the trial judge would again preside—and would conduct the resentencing without bias. As noted, just as the trial judge is considered best suited to preside at the initial sentencing hearing, so too is he or she viewed as best situated to perform the function of sentencing on remand, by selecting the appropriate sentence in light of the circumstances established at trial and in light of the defendant’s record. Even though reviewing courts possess authority to specify that proceedings on remand be conducted by a judge other than the one who imposed judgment, they rarely do so. With respect to sentencing error in particular, “the statutory power of appellate courts to disqualify sentencing judges should be used sparingly and only where the interests of justice require it.” (People v. Gulbrandsen, supra, 209 Cal.App.3d at p. 1562.)

As the court explained in the Gulbrandsen case, “[disqualification may be necessary where the sentence of the original judge indicates an animus

In sum, unlike the situation in which a new trial is ordered, when resentencing is all that is required, the parties are not placed in the same position as if there had been no trial. The criminal charges need not be refiled. The parties at an ordinary resentencing hearing do not, as Penal Code section 1180 provides with regard to the granting of a new trial, proffer new evidence on the issues decided by the verdict, nor does the court disregard the original verdict. Rather, unlike the situation of a new trial, where a resentencing hearing is ordered the original trial judge is in the best position to preside, because he or she must exercise sentencing discretion on the basis of the preexisting trial record and verdict. The potential for bias is not great, and in any event is restricted by state constitutional limits on the imposition of an aggregate sentence lengthier than that originally imposed. (See People v. Hanson (2000) 23 Cal.4th 355 , 357, 360 & fn. 3 [ 97 Cal.Rptr.2d 58 , 1 P.3d 650 ].) Taking into consideration the applicable statutes, prior court practice, the function of a sentencing hearing, and the limited effect on the judgment of a reviewing court’s order remanding for resentencing, we

The other case relied upon by the Court of Appeal majority in the present case is Hendershot v. Superior Court, supra, 20 Cal.App.4th 860 . In that case, after a court trial, a $35,012 judgment was entered against a corporation and an individual. The court also awarded punitive damages against the individual defendant. On appeal, the reviewing court reversed the judgment as to the individual defendant but affirmed the judgment against the corporation. The individual defendant sought restitution from the plaintiff because that defendant already had paid the amount of the judgment against him. The Court of Appeal declined to act on the application for an order of restitution and remanded the case to the trial court for decision, noting that “ ‘[tjhere are questions of fact to be resolved by the trial court, including whether amounts paid by [the individual defendant] were on his own behalf or on behalf of [the] Corporation.’ ” (Hendershot v. Superior Court, supra, 20 Cal.App.4th at p. 862.) The individual defendant made a motion for restitution in the trial court and, learning that the matter would be assigned to the original trial judge, filed a challenge pursuant to section 170.6. The trial court rejected the challenge as untimely and “[t]he case was set for trial on the remanded issues.” (Hendershot v. Superior Court, supra, 20 Cal.App.4th at p. 862.)

The Court of Appeal determined that its remand order contemplated a “new trial” as that term is used in section 170.6, subdivision (2). (Hendershot v. Superior Court, supra, 20 Cal.App.4th at p. 863.) That court joined the court in Stegs in finding that the apparent purpose of the 1985 amendment was to reach cases “in which the trial judge might be perceived as holding a bias against the party that had successfully pressed the appeal that led to reversal of the earlier judgment.” {Id. at p. 864.) The appellate court examined the meaning of the term “new trial” in section 170.6, subdivision (2), noting that the statute itself does not define the term. The court—presented with a civil case—turned to the Code of Civil Procedure for a general definition of the term “new trial.” That code defines a new trial as “a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” (§ 656.) The quoted statute has been construed quite broadly. (See Carney v. Simmonds (1957) 49 Cal.2d 84 , 88-91 [ 315 P.2d 305 ].) Pointing out that its remand order involved “a contested issue in

In addition, a defendant’s interest in a full and fair sentencing hearing usually is best served when the hearing is presided over by the same judge who heard the evidence at trial. (See People v. Strunk, supra, 31 Cal.App.4th at p. 275; People v. Gulbrandsen, supra, 209 Cal.App.3d at p. 1562.) A conclusion contrary to the one we reach today actually could harm defendants, should the prosecution be permitted to challenge a judge it regards as too lenient. Further, it may be an implied term of a plea agreement that the judge who accepted the plea also preside at sentencing—and at any resentencing hearing. (See People v. Arbuckle, supra, 22 Cal.3d at pp. 756-757.) We have not discovered any indication in the language of section 170.6, subdivision (2) or in the legislative history of the 1985 amendment that the Legislature intended to permit the prosecutor to defeat this interest of the defendant by challenging the judge under section 170.6 when the reviewing court has remanded for resentencing.

Petitioner and the majority in the Court of Appeal both refer to the asserted purpose of the language added to section 170.6, subdivision (2) by the 1985 amendment and conclude that the Legislature intended to protect, in all circumstances, parties who have prevailed on appeal from the presumed ire or potential bias of trial judges whose rulings have been reversed. Petitioner relies on Stags, Hendershot, and other civil cases for the proposition that a section 170.6 challenge should be permitted at any hearing in which there is any potential for bias. He quotes a relatively recent civil case: “Assuming, as the Legislature did, that a judge may react with a certain pique to the negative treatment of his or her decisions by an appellate court, this situation [partial reversal of a trial court’s grant of summary judgment] is obviously one in which the potential for bias exists.” (Stubblefield Construction Co. v. Superior Court (2000) 81 Cal.App.4th 762 , 766 [ 97 Cal.Rptr.2d 121 ], fn. omitted.)

The legislative history of the 1985 enactment does not support the assertion that the Legislature intended to permit a section 170.6 challenge at any

Like other appellate courts, we anticipate little risk that a trial judge whose order has been reversed on appeal will perform the resentencing function in a biased manner in reaction to the reversal. (See, e.g., People v. Gulbrandsen, supra, 209 Cal.App.3d at pp. 1562-1563.) As noted, if the reversal is required by reason of sentencing error, the technical and complex nature of the sentencing law renders the error understandable and not particularly embarrassing to the judge. Moreover, in another circumstance that distinguishes criminal from civil trials, it is very significant that the state Constitution greatly circumscribes the power of the trial judge on remand to impose a harsher aggregate sentence at the resentencing hearing. (See People v. Hanson, supra, 23 Cal.4th at pp. 357, 360 & fn. 3.) We also observe that the reviewing court has authority, either on its own motion or at the request of a party, to order that sentencing take place before another judge when the defendant’s interest in sentencing by the trial judge is outweighed by the potential that the trial judge will be biased. (§ 170.1, subd. (c).)

Protecting parties from the bias that a trial judge might exhibit after a reversal is a laudable goal, but one that does not take precedence over every other element of a fair trial. There is no indication that the Legislature intended section 170.6, subdivision (2) to permit a peremptory challenge whenever there exists even a potential for bias arising out of a judge’s reaction to being reversed on appeal, especially when permitting such a challenge would contravene other statutory provisions. (See, e.g., People v. Superior Court (Jimenez), supra, 28 Cal.4th at p. 806 [applying the Pen. Code, § 1538.5, subd. (p) requirement for remand to the original trial judge, despite the filing of a § 170.6 challenge in that case].) Accordingly, we cannot agree with petitioner and the Court of Appeal majority that a section 170.6 challenge will lie whenever the potential exists that a judge who is called upon to exercise discretion might react adversely to a reversal.

Without examining the correctness of the Court of Appeal’s holding in People v. Superior Court (Maloy), supra, 91 Cal.App.4th 391 , we observe that the appellate court in that case placed undue reliance on civil law and failed to recognize the significant differences between civil and criminal law as they relate to new trials. Further, Maloy contemplated a proceeding in which the trier of fact eventually would resolve the issues without reference to any previous verdict, clearly distinguishing that case from a case involving a resentencing hearing. Finally, with respect to the assertion that section 170.6 must be given a liberal construction, our own cases have observed that because of the dangers presented by judge-shopping—by either party—the limits on the number and timing of challenges pursuant to this statute are vigorously enforced. (See Solberg v. Superior Court, supra, 19 Cal.3d at p. 197.) We do not believe that the 1985 amendment of section 170.6, subdivision (2) was intended to eliminate all restrictions on the challenge or to counter every possible situation in which it might be speculated that a court could react negatively to a reversal on appeal.

Our conclusion avoids entangling courts in constitutional questions that are unique to criminal trials and that could arise if a resentencing hearing were to be considered a new trial. The conclusion we reach also avoids the obvious practical difficulties that would be imposed by the decision of the Court of Appeal—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 within the meaning of section 170.6, 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.

Ill

For the foregoing reasons, the judgment of the Court of Appeal is reversed.