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Filed 10/3/ 23 Mendoza v. Superior Court CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

EMMANUEL MATHEW MENDOZA,

Petitioner,

v.

THE SUPERIOR COURT OF SAN JOAQUIN COUNTY,

Respondent ;

THE PEOPL E

,

Real Party in Interest. C098138

(Super. Ct. No. STKCRFE20110004791)

We deny petitioner Emmanuel Mathew Mendoza’s petition for writ of mandate or

prohibition because a peremptory challenge to a judge under Code of Civil Procedure2

section 17 0 .6 is unavailable for the resentencing procedures under Penal Code section

1172.6 (further undesignated statutory references are to the Penal Code)

. 1

BACKGROUND

In 2019, Mendoza filed a section 1172.6 petition for resentencing of his 2012 first

degree murder conviction with a robbery special

- circumstance finding. The trial court

denied the petition at the prima facie stage because of the special circumstance. We

reversed th e trial court’s denial

. ( People v. Mendoza (Dec. 12, 2022, C089455 ) [nonpub.

opn.].)

On remand, Mendoza filed a declaration of prejudice under Code of Civil

Procedure section 170.6 challenging the trial court judge who had originally denied the

section 1172.6 petition and was also the judge for Mendoza ’s original trial. The trial

court stated, “I’m going to reject that

. ” Mendoza filed a petition for writ of mandate or

prohibition w ith this court, and we issued an order to show cause.

DISCUSSION

Code of Civil Procedure section 170.6 permits peremptory challenges of judges

before trial begins. ( Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1252

- 1253

. ) A

challenge under this section is also permitted “ 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. ”

(Code Civ. Proc

. , § 170.6, subd. (a)(2) , italics added .) Mendoza contend s the trial court

erred in denying his Code of Civil Procedure section 170.6 motion because a section

1172.6 proceeding is a “new trial

. ”

1 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) Mendoza filed under former section 1170.95

but w e will refer to the statute as section 1172.6.3

At least two appellate opinions, including one from a different panel of this court,

have found that section 117 2 .6 proceedings do not constitute a new trial

. ( Estrada v.

Superior Court (2023) 93 Cal.App.5th 915 ; People v. Torres (2023) 94.Cal.App.5th 497.)

These cases rely on definitions in the Penal Code stating a n ew trial means a

“reexamination of the issue” that “ ‘places the parties in the same position as if no trial

had been had.’ ” ( See Peracchi v. Superior Court, supra , 30 Cal.4th at p. 1253

, quoting

§§ 1179, 1180 ; Estrada , at p p. 923

- 924

, citing to Peracchi and §§ 1179, 1180; Torres , at

p p. 17

- 18

, same .) Section 1172.6 is a resentencing procedure providing defendants

serv ing final sentences “ ‘ “ the benefit of ameliorative changes to applicable criminal

laws and does not result in a new trial or increased punishment. ” ’ ” ( Estrada , at p. 925 ;

Torres , at p. 515 [“ Unlike the parties to a new trial, the parties to a section 1172.6,

subdivision (d)(3) hearing are not placed in the same situation as if there had never been a

trial ”]. ) We agree with these opinions

.4 DISPOSITION

The petition for writ of mandate or prohibition is denied.

/s/

MESIWALA

, J.

We concur:

/s/ EARL, P. J.

/s/

KEITHLEY , J. *

* Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant

to article V I, section 6 of the California Constitution.