Filed 9/17/20

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, B305626

Petitioner,

v.

(Los Angeles

County Super. Ct. No.

YA092768)

THE SUPERIOR COURT OF LOS

ANGELES COUNTY,

Respondent;

ROBERT BRIAN REAGAN,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate.

Edmund Willcox Clarke, Jr., Judge. Petition denied.

Jackie Lacey, District Attorney, John Niedermann and 

Matthew Brown, Deputy District Attorneys, for Petitioner.

No appearance by Respondent.

Deborah L. Hawkins, under appointment by the Court of 

Appeal, for Real Party in Interest.
We consider how the occasionally arcane timeliness rules 

for Code of Civil Procedure section 170.6 (Section 170.6) judicial 

peremptory challenges should apply in case of a proceeding 

initiated by the filing of a habeas corpus petition in Los Angeles 

County Superior Court.

I

A jury convicted Real Party in Interest Robert Brian 

Reagan (Reagan) of second degree murder for stabbing his 

girlfriend to death while their son slept in the next room. In 

2019, we affirmed the judgment on direct appeal.

After his conviction was final, on January 30, 2020, Reagan 

filed a voluminous habeas corpus petition in the superior court. 

The substance of the claims asserted in that petition are 

unimportant for our present purposes; the mechanics of the 

superior court’s processing of his petition, and the People’s 

response to the filing of the petition, are what matter.

The habeas petition was initially filed in Department 100 of 

the superior court. That was consistent with the superior court’s 

local rules, which state a petition filed in a noncapital case after 

the defendant is held to answer must (for Central District cases) 

be filed with the Supervising Judge of the Criminal Division in 

Department 100. (Super. Ct. L.A. County, Local Rules, rule 

8.33(a)(1)(A).) The same local rule further provides the 

“supervising judge (sitting as a master calendar court) will 

promptly assign the petition to the department where sentence 

was imposed . . . .” (Ibid.)

Consistent with the local rule, Reagan’s petition was 

sent from Department 100 to the Torrance Courthouse, and on 

February 20, 2020, the supervising judge in Torrance assigned

2
the matter “for review and ruling” to Department G, the 

department in which Reagan’s criminal trial had been held. 

Because the judge who presided over Reagan’s trial was no 

longer assigned to that department, Judge Edmund Clarke was 

the recipient of the petition for ruling.

As his first order of business, Judge Clarke calendared the 

petition for a “status review” on a date in March 2020. Before the 

appointed status review date, however, Judge Clarke issued a 

March 10, 2020, in-chambers order (with no parties present) 

summarizing the gist of the habeas petition and ordering the Los 

Angeles County District Attorney (District Attorney) to file an 

informal response within 45 days—a sua sponte extension of the 

customary 15-day time to file such a response. Judge Clarke’s 

order permitted Reagan to file a reply to the informal response 

and stated the matter would “stand submitted” if no reply were 

filed. The order included directions to the court clerk to serve the 

order on the District Attorney and counsel for Reagan.1

On April 15, 2020, i.e., just over a month after Judge 

Clarke’s order requesting an informal response, the District 

Attorney filed a Section 170.6 peremptory challenge against 

Judge Clarke. A memorandum of points and authorities 

accompanying the challenge argued it was timely filed because 

“there is a presumption that . . . an all purpose assignment [of

1 In her petition in this court, the District Attorney 

acknowledges Judge Clarke ordered the clerk to serve a copy of 

the order on the District Attorney’s office and “assume[s] that 

the clerk did so.” There is no need for assumptions, however. The 

copy of Judge Clarke’s order in the record bears a stamp 

indicating it was received in the appellate division of the District 

Attorney’s office on March 13, 2020, at 2:29 p.m.

3
Judge Clarke] occurred by virtue of his issuance of the order for 

an informal response,” “the all purpose assignment time limits in 

[S]ection 170.6, subdivision (a)(2), apply,” and that subdivision’s 

10-day deadline had not even begun to run because the District 

Attorney “‘ha[d] not yet appeared in th[is] action.’”

The day after the Section 170.6 challenge was filed, Judge 

Clarke denied it as untimely. Judge Clarke noted his denial of 

the challenge as untimely “renders moot the problem that [the 

District Attorney’s peremptory challenge] do[es] not show service 

on [Reagan’s] counsel.”

The District Attorney filed a petition for writ of mandate 

in this court challenging Judge Clarke’s denial of its Section 

170.6 motion. We issued an order to show cause and specifically 

invited counsel for the superior court to respond to the petition 

given the obvious implications for superior court operations and 

practice. Superior court counsel, however, declined our 

invitation, which left the District Attorney and Reagan as the 

only parties to file briefs in this proceeding.

II

We shall explain in more detail, but the bottom line is the 

trial court correctly ruled the District Attorney’s Section 170.6 

motion was untimely. Although the District Attorney tries to 

walk back her concession below that the assignment of the 

habeas petition to Judge Clarke was one for all purposes, 

precedent (including the same precedent the District Attorney 

cited below) holds that is indeed what the assignment should 

be considered. Applying Section 170.6’s all purpose assignment 

rule, the peremptory challenge to Judge Clarke had to be made 

“within 10 days after notice of the all purpose assignment, or if

4
the party has not yet appeared in the action, then within 10 days 

after the appearance.” (§ 170.6, subd. (a)(2).) The District 

Attorney received notice of Judge Clarke’s assignment well more 

than ten days before it filed its Section 170.6 motion, and in the 

peculiar context of a habeas corpus proceeding where the 

assigned judge gives notice of his or her assignment to the 

District Attorney by ordering an informal response, that notice 

provision controls and the later “10 days after the appearance” 

deadline in Section 170.6, subdivision (a)(2) is inoperative.2

“Section 170.6 provides that ‘[a] judge, court commissioner, or 

referee of a superior court of the State of California shall not try a 

civil or criminal action or special proceeding of any kind or 

character nor hear any matter therein that involves a contested 

issue of law or fact when it is established as provided in this section 

that the judge or court commissioner is prejudiced against a party 

or attorney or the interest of a party or attorney appearing in the 

action or proceeding.’ (§ 170.6, subd. (a)(1).) Prejudice is established, 

for purposes of [S]ection 170.6, by a motion supported by an 

‘affidavit or declaration under penalty of perjury, or an oral 

statement under oath’ that the assigned judge ‘is prejudiced against 

a party or attorney . . . so that the party or attorney cannot, or 

believes that he or she cannot, have a fair and

2 Because it ultimately would not change our disposition of this 

proceeding, and because the parties’ briefs train nearly all of their 

focus on the all purpose assignment and general timeliness rules, 

we do not discuss whether the assignment of the petition to Judge 

Clarke under Los Angeles County Superior Court Local Rule 8.33 

could constitute “the trial of a cause with a master calendar,” nor 

whether the District Attorney’s failure to serve its Section 170.6 

motion on opposing counsel rendered it inoperative.

5
impartial trial or hearing before the judge . . . .’ (§ 170.6, subd. 

(a)(2).) So long as the ‘motion is duly presented, and the affidavit 

or declaration under penalty of perjury is duly filed or an oral 

statement under oath is duly made, thereupon and without any 

further act or proof,’ a different judge must be assigned to try the 

cause or hear the matter. (§ 170.6, subd. (a)(4).)” (Maas v.

Superior Court (2016) 1 Cal.5th 962, 972 (Maas).)

“Section 170.6 does not mention habeas corpus proceedings 

or, for that matter, any writ or postconviction relief petitions.” 

(Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 990 

(Bontilao).) But our Supreme Court has held Section 170.6 

motions may be successfully brought in habeas corpus 

proceedings where (as here) the assigned judge is not the judge 

who presided over the underlying criminal matter. (Maas, supra, 

1 Cal.5th at 975-976, 979.) Though Section 170.6 motions are fair 

game in such circumstances, “the Legislature was well aware of 

the potential that [Section 170.6’s] provisions ‘may be abused by 

parties seeking to delay trial or to obtain a favorable judge[,]’” 

and the statute accordingly “restricts both the number and the 

timing of a peremptory challenge against a judge.” (Id. at 973; see 

also id. at 983, fn. 3 [explaining the court in Maas had no 

occasion to address questions regarding the timeliness rules that 

apply to a Section 170.6 motion in a habeas proceeding].)

Owing to the awkwardness in applying Section 170.6 rules 

to habeas proceedings that are not mentioned in the text of the 

statute (which instead uses terms like “hearing,” “trial,” and 

“cause” that are more geared to typical civil and criminal 

proceedings), determining the timeliness of a Section 170.6 

challenge to a judge assigned to decide a habeas corpus petition is 

“difficult[ ].” (Bontilao, supra, 37 Cal.App.5th at 990.) Here is

6
the statutory text that sets the pertinent rules: “If the judge, 

other than a judge assigned to the case for all purposes, court 

commissioner, or referee assigned to, or who is scheduled to try, 

the cause or hear the matter is known at least 10 days before the 

date set for trial or hearing, the motion shall be made at least 5 

days before that date. If directed to the trial of a cause with a 

master calendar, the motion shall be made to the judge 

supervising the master calendar not later than the time the cause 

is assigned for trial. If directed to the trial of a criminal cause 

that has been assigned to a judge for all purposes, the motion 

shall be made to the assigned judge or to the presiding judge by a 

party within 10 days after notice of the all purpose assignment, 

or if the party has not yet appeared in the action, then within 10 

days after the appearance. If directed to the trial of a civil cause 

that has been assigned to a judge for all purposes, the motion 

shall be made to the assigned judge or to the presiding judge by a 

party within 15 days after notice of the all purpose assignment, 

or if the party has not yet appeared in the action, then within 15 

days after the appearance.” (§ 170.6, subd. (a)(2).)

That dense statutory text cries out for a simplified summary, 

and prior opinions have endeavored to summarize. This is a good 

one: “Generally, a [S]ection 170.6 challenge is permitted any time 

before the commencement of a trial or hearing. There are, however, 

three exceptions to the general rule: the all-purpose assignment 

rule, the 10-day/five-day rule, and the master calendar rule. 

(People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171[ 

(Lavi)].) [¶] . . . [¶] Under the all-purpose assignment rule, a 

[S]ection 170.6 challenge to a judge must be filed within 10 days for 

criminal cases, or within 15 days for civil cases, after notice of the 

judge’s all-purpose assignment.

7
[Citations.] [¶] Under the 10-day/five-day rule, a [S]ection 170.6 

challenge to a judge who has not been assigned for all purposes 

must be filed at least five days before the trial date if the judge’s 

identity is known more than 10 days before that date. [¶] . . . [¶] 

Under the master calendar rule, a [S]ection 170.6 challenge 

must be filed no later than the time the case is assigned for trial. 

[Citations.]” (Entente Design, Inc. v. Superior Court (2013) 214 

Cal.App.4th 385, 389-390.)

As the court in Bontilao recently explained, our Supreme 

Court has held that “for a case assignment to be an all purpose 

assignment, two prerequisites must be met. [Citation.] First, the 

method of assigning cases must ‘instantly pinpoint’ the judge 

whom the parties can expect to ultimately preside at trial. 

Second, that same judge must be expected to process the case ‘in 

its totality’ [citation], from the time of the assignment, thereby 

‘acquiring an expertise regarding the factual and legal issues 

involved, which will accelerate the legal process.’ [Citation.] 

(Lavi, supra, 4 Cal.4th at [ ] 1180[ ].)” (Bontilao, supra, 37 

Cal.App.5th at 991-992; see also Lavi, supra, 4 Cal.4th at 1180, 

fn. 13 [cautioning that an all purpose assignment does not 

literally mean the specified judge must handle every issue that 

arises in a case from start to finish, which would be an 

“impracticable standard”].)

These two prerequisites are satisfied here. The February 

20, 2020, order assigned Reagan’s habeas petition to Judge 

Clarke in Department G and the judge’s subsequent informal 

response order, served on the parties, instantly pinpointed him as 

the assigned judicial officer. The District Attorney concedes as 

much. In addition, Judge Clarke’s assignment was for “review 

and ruling” on the habeas petition, and this is naturally

8
understood as a direction to handle the special habeas proceeding 

in its totality from the time of his assignment—in other words, an 

assignment for all purposes. (See, e.g., Bontilao, supra, 37 

Cal.App.5th at 997.)

The District Attorney nonetheless offers several meritless 

arguments to the contrary—not just the contrary of the 

conclusion we have drawn, mind you, but the contrary of its own 

argument below that Section 170.6’s all purpose assignment rule 

applies. The District Attorney now contends there has been no 

all purpose assignment because it never received notice Judge 

Clarke had been assigned for all purposes—in other words, the 

informal response order did not include text (as there was in 

Bontilao, supra, 37 Cal.App.5th at 997) stating Judge Clarke was

assigned for all purposes. But it is well established, even in 

Bontilao itself, that the label a court slaps on an assignment is

not controlling and the practical reality of the assignment under 

the two aforementioned criteria set by our Supreme Court is 

what matters. (Bontilao, supra, at 997 [“the superior court’s label 

of the assignment ‘does not automatically control’ the application 

of the timing rules of [S]ection 170.6”]; see also Lavi, supra, 4 

Cal.4th at 1175 [“[W]e must look beyond the ‘master calendar 

department’ label and determine whether a given method of 

assigning cases effectuates the function and purpose of the 

master calendar rule before we can conclude that an assignment 

from a ‘true’ master calendar has occurred for the purposes of 

[S]ection 170.6”].) The District Attorney also complains the 

assignment of Judge Clarke is not one for all purposes because 

the assigned judicial officer could change and it is not a “foregone 

conclusion” that the petition will remain with Judge Clarke for 

decision. This is precisely the argument that

9
Bontilao rejects, and we reject, as impermissibly speculative.

(Bontilao, supra, at 997-998 [“In Lavi, the California Supreme 

Court rejected the contention that the possibility that the judge 

assigned to the matter might change due to illness or 

reassignment defeats the application of the all-purpose 

assignment exception”].) Finally, the District Attorney argues 

that if the assignment in this case is an all purpose assignment 

“then almost all habeas corpus cases” will be deemed all purpose 

assignments. Exactly right, and we see no problem with that 

under prevailing law. If the Legislature wants different 

timeliness rules to apply to judicial peremptory challenges 

brought in habeas corpus proceedings, it can amend Section 170.6 

to clarify the rules that should apply.

Our analysis to this point establishes the all purpose 

assignment timeliness rule applies to the Section 170.6 motion 

at issue here. In an argument with more heft to it than the 

others she offers, the District Attorney asserts the petition was 

still timely under that rule because her office never made an 

appearance in the habeas corpus proceeding, which in her view 

means Section 170.6’s deadlines for filing a judicial peremptory 

challenge never began to run.

In evaluating this argument, it is worth recalling the 

operative statutory text that governs:3 “[T]he motion shall be 

made to the assigned judge or to the presiding judge by a party 

within 10 days after notice of the all purpose assignment, or if 

the party has not yet appeared in the action, then within 10 days

3 We follow Bontilao and apply the all purpose 

assignment timeliness rule for criminal cases. (Bontilao, 

supra, 37 Cal.App.5th at 999.)

10
after the appearance.” (§ 170.6, subd. (a)(2).) We do not read this 

language the way the District Attorney does, i.e., to permit the 

District Attorney to wait over a month to file its peremptory 

challenge despite having received notice from the court of Judge 

Clarke’s assignment.

Though the District Attorney believes she had not yet made 

an appearance in the action because the informal response had 

not been filed (which in her view means she had 55 days to file a 

Section 170.6 motion: the 45 days allotted by Judge Clarke 

pursuant to a sua sponte extension of time plus ten days 

thereafter), that is not the correct understanding of the section 

170.6 all purpose assignment deadline in a habeas proceeding. 

Unlike ordinary civil and criminal cases where a formal notice 

document (a summons, criminal complaint, information, or 

indictment) begins the proceeding, establishes jurisdiction over 

the parties, and provides a sure means of identifying who will 

represent a party in the ensuing court proceedings, in a habeas 

proceeding no such elaborate process is required to permit notice 

to be given to an opposing party. The proper petitioner and 

respondent will be well known from the face of the petition (and 

prior criminal proceedings). (Pen. Code, § 1475 [“Whenever the 

person applying for a writ of habeas corpus is held in custody or 

restraint by any officer of any court of this state or any political 

subdivision thereof, or by any peace officer of this state, or any 

political subdivision thereof, a copy of the application for the writ 

must in all cases be served upon the district attorney of the 

county wherein the person is held in custody or restraint . . .”].) 

Thus, for habeas proceedings, Section 170.6, subdivision (a)(2)’s 

alternative method for determining timeliness—a method that 

applies when the primary method (notice) is practically

11
impossible because the “party has not yet appeared in the action” 

(§ 170.6, subd. (a)(2)—will often never come into play. (See 

Bontilao, supra, 37 Cal.App.5th at 998 [“For each of the allpurpose assignment rules, the clock begins to run when the party 

receives notice of the all-purpose assignment”].) In a habeas case, 

timeliness is to be measured from court-initiated notice of an all 

purpose assignment and, only where such notice has not been 

given, from ten days after the People’s appearance.

This holding not only comports with the statutory 

language, it best fits the realities of habeas corpus practice. By 

California statute and rule, habeas petitions must be decided 

without unnecessary delay. (Pen. Code, § 1476 [“Any court or 

judge authorized to grant the writ, to whom a petition therefor is 

presented . . . must, if it appear that the writ ought to issue, 

grant the same without delay . . .”]; Cal. Rules of Court, rule

4.551(a)(3)(A) [“On filing, the clerk of the court must immediately 

deliver the petition to the presiding judge or his or her designee. 

The court must rule on a petition for writ of habeas corpus 

within 60 days after the petition is filed”].) Permitting a party 

who concededly has notice of the judge assigned to sit on its 

hands (as here, for a month or more) before filing a peremptory 

challenge serves no salutary purpose and instead creates just the 

sort of unnecessary delay the law abhors.4

4 In a garden variety habeas corpus proceeding where the 

court requests an informal response, the response is due within

15 days. (Cal. Rules of Court, rule 4.551(b)(2).) If, as we have 

held here, the informal response order operates as notice of an all 

purpose assignment, that means the time to file a peremptory 

challenge stands in practical harmony with the informal 

response rules. Depending on the method by which notice of the

12
Returning to the specific facts of this case, the District 

Attorney had legal notice of Judge Clarke’s all purpose 

assignment at the latest on March 15, 2020, five days after 

service of the informal response order (and actual notice on 

March 13, 2020, when the District Attorney received the 

order). The District Attorney did not file its Section 170.6 

motion until April 15, 2020. That was more than ten days after 

notice of the assignment. The Section 170.6 motion was 

therefore untimely, as the trial court correctly found.

DISPOSITION

The petition for writ of mandate is denied.

CERTIFIED FOR PUBLICATION

BAKER, J.

We concur:

RUBIN, P. J. KIM, J.

assignment is served, a Section 170.6 motion would have to be 

filed on or before the date the informal response is due.

13