Supreme Court of California Justia
Docket No. S103681
Peracchi v. Super. Ct.

Filed 6/23/03


Ct.App. 5, No. F038251
Real Party in Interest.
Super. Ct. No. 60563

In this case we interpret Code of Civil Procedure section 170.6, subdivision
(2).1 Section 170.6 permits a party in civil and criminal actions to move to
disqualify an assigned trial judge on the basis of a simple allegation by the party or
his or her attorney that the judge is prejudiced against the party. Various
restrictions on the timing of the motion are imposed by this statute, and a party
may exercise such a challenge only once during the trial of an action or a special
proceeding. A motion that conforms to all the requirements of section 170.6,
however, must be granted.

Statutory references are to the Code of Civil Procedure unless otherwise

Historically, a challenge could not be filed for the first time after a
reviewing court remanded the matter to the trial court. In 1985, however, the
Legislature amended section 170.6 to add the following language: “A motion
under this paragraph may be made 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.”
(§ 170.6, subd. (2).)
It is the quoted language that we interpret in this case. We must determine
whether a party may challenge a trial judge pursuant to section 170.6, subdivision
(2) after an appellate court partially reverses a criminal judgment and remands the
matter to the trial court for potential retrial of the reversed count and for
resentencing, in a case in which the prosecutor determines not to retry the charge
in the reversed count. We conclude that the language of section 170.6, subdivision
(2) does not permit a challenge when, following such a remand, the sole task left
for the trial court is to resentence the defendant. We reach this conclusion because
of the meaning of the statutory term “new trial” in the context of criminal
proceedings, and because of the nature of sentencing hearings.2
A jury found petitioner guilty of two felonies that were committed in
Fresno in 1996: reckless driving while eluding a police officer (Veh. Code,
§ 2800.2) and being a felon in possession of a firearm. (Pen. Code, § 12021, subd.

Our opinion is not intended to suggest that a challenge will not lie after a
remand that implicates a defendant’s rights pursuant to Apprendi v. New Jersey
(2000) 530 U.S. 466, where the United States Supreme Court held: “Other than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory minimum must be submitted to a jury, and proved beyond
a reasonable doubt.” (Id. at p. 490.)

(a)(1).) In a bifurcated proceeding, the trial court found true the allegations that
petitioner had two prior strike convictions (for robbery and burglary). (Pen. Code,
§ 1170.12.) The court denied petitioner’s motion to strike the prior convictions
and sentenced petitioner to a term of 25 years to life in prison for the offense of
reckless driving while evading a police officer, and to a concurrent term of 25
years to life for the offense of possession of a firearm.
Petitioner challenged the convictions on appeal. Among other contentions,
he claimed that the trial court had erred under Miranda v. Arizona (1966) 384 U.S.
436 by admitting into evidence a statement made by petitioner to the police. The
Court of Appeal determined that the error required reversal of petitioner’s
conviction for reckless driving while evading a police officer, but found the error
harmless beyond a reasonable doubt as to the firearm possession count. The
court’s opinion decreed the following disposition: “The conviction for evading a
police officer is reversed. The matter is remanded for retrial on that count, if the
prosecutor so elects, and for resentencing. In all other respects the judgment is
affirmed.” (People v. Peracchi (2001) 86 Cal.App.4th 353, 364.)
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 [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 [same, in partnership dissolution action].) Employing
the broad reading of the term “new trial” outlined by these decisions, the Court of
Appeal in the present case declared that “the proper approach is to focus on the
function the judicial officer is to perform upon remand, rather than simply the
nature of the hearing at issue. Such an approach requires a case-by-case analysis.”
Because it found that the trial judge would have significant discretion at the
resentencing hearing and would have an opportunity to “rehear evidence regarding
the appropriate sentence for petitioner and . . . have the opportunity to exercise his
discretion in regard to such matters as striking a prior serious or violent felony,”
the Court of Appeal concluded that “[t]he policy behind section 170.6, to avoid
possible bias by a trial judge who has been reversed on appeal, will best be served
by interpreting ‘new trial’ to encompass this resentencing.” The Court of Appeal
majority emphasized that its holding “is based on what decisions the trial court
judge in this case is going to make on remand and not on the general nature of
resentencings on remand.”
The dissenting justice, however, criticizing the Hendershot and Stegs
decisions, asserted that “nothing in the history of the 1985 amendment . . .
suggest[s] 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 . . . .” (Curle v. Superior Court (2001) 24 Cal.4th
1057, 1070.) 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. (People v. Superior
Court (Jimenez) (2002) 28 Cal.4th 798, 806.)3
This court described the basic outline of section 170.6 in Solberg v.
Superior Court (1977) 19 Cal.3d 182. The statute “provides in substance that any
party or attorney to a civil or criminal action may make an oral or written motion
to disqualify the assigned judge, supported by an affidavit that the judge is
prejudiced against such party or attorney or the interest thereof so that the affiant
cannot or believes he cannot have an impartial trial. As hereinafter appears, there
are strict limits on the timing and number of such motions; but if the motion is
timely and in proper form, the judge must recuse himself without further proof and
the case must be reassigned to another judge.” (Id. at p. 187.) We also explained
that the statute reasonably serves the Legislature’s evident purpose of
“maintaining the appearance as well as the fact of impartiality in the judicial
system: the business of the courts . . . must be conducted in such a manner as will
avoid even the ‘suspicion of unfairness.’ ” (Id. at p. 192.)
Section 170.6 requires the challenge to be brought early in the proceedings
and declares that “[i]n no event shall any judge . . . entertain the motion if it be
made after the drawing of the name of the first juror, or if there be no jury, after
the making of an opening statement by counsel for plaintiff, or if there is no such
statement, then after swearing in the first witness or the giving of any evidence or
after trial of the cause has otherwise commenced.” (§ 170.6, subd. (2).) It adds:

The statute begins: “No judge . . . shall try any 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 shall be established as hereinafter
provided that the judge . . . is prejudiced against any party or attorney or the
interest of any party or attorney appearing in the action or proceeding.” (§ 170.6,
subd. (1).)

“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.” (Ibid.) If the
motion under section 170.6 is presented in a timely fashion and in the proper form,
however, a new judge must be assigned “to try the cause or hear the matter,”
without any requirement of “any further act or proof.” (§ 170.6, subd. (3).)
Except as otherwise provided by the statute, a party may not file more than one
motion under section 170.6 “in any one action or special proceeding.” (Ibid.)
As we acknowledged in Solberg v. Superior Court, supra, 19 Cal.3d 182,
the peremptory challenge created by section 170.6 presents the potential for abuse
and judge-shopping — on the part of either or both parties. In response to this
danger, we pointed out, “the courts of this state have been vigilant to enforce the
statutory restrictions on the number and timing of the motions permitted. . . . ‘We
cannot permit a device intended for spare and protective use to be converted into a
weapon of offense and thereby to become an obstruction to efficient judicial
administration.’ ” (Solberg, at pp. 197-198, fn. omitted.)
Despite the statutory provisions requiring that the challenge be brought at
an early stage of the proceedings and directing that a party may not bring more
than one challenge, in 1985 the Legislature added the language that we must
construe in the present case: “A motion under this paragraph may be made
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.” (§ 170.6, subd. (2), italics added.)4

In 1998, the Legislature further clarified that “[n]otwithstanding [another
provision limiting parties to one challenge], the party who filed the appeal that
resulted in the reversal of a final judgment of a trial court may make a motion
under this section regardless of whether that party or side has previously done so.”
(§ 170.6, subd. (2).)

The specific question we must answer is whether a sentencing hearing that
is conducted on remand after a partial reversal on appeal constitutes in itself a
“new trial” within the meaning of section 170.6, subdivision (2). We undertake
this task acknowledging that “[t]he fundamental purpose of statutory construction
is to ascertain the intent of the lawmakers so as to effectuate the purpose of the
law.” (People v. Pieters (1991) 52 Cal.3d 894, 898.) As with any question of
statutory interpretation, the best indication of legislative intent appears in the
language of the enactment. (See People v. Farell (2002) 28 Cal.4th 381, 386.)
Further, “we do not construe statutes in isolation, but rather read every statute
‘with reference to the entire scheme of law of which it is a part so that the whole
may be harmonized and retain effectiveness.’ ” (People v. Pieters, supra, 52
Cal.3d at p. 899; see also People v. Rizo (2000) 22 Cal.4th 681, 685.)
The Penal Code defines a new trial as “a reëxamination of the issue in the
same Court, before another jury, after a verdict has been given.” (Pen. Code,
§ 1179.) Penal Code section 1180 explains that “[t]he granting of a new trial
places the parties in the same position as if no trial had been had. All the
testimony must be produced anew, and the former verdict or finding cannot be
used or referred to, either in evidence or in argument . . . .”
The court’s function at sentencing, however, ensures that resentencing
cannot occur “as if no trial had been had.” (Pen. Code, § 1180.)5 Far from being a
proceeding at which the trier of fact resolves the issues raised in the case, the
sentencing hearing  or resentencing hearing  follows the entry of the verdict

As the trial court indicated, had the prosecution determined to retry
petitioner on the reckless driving count, a new trial on that count would have
ensued and the peremptory challenge properly would have been granted. Because
the prosecution decided against this course, the only proceeding that was
necessary under the remand order was resentencing.

and the discharge of the jury, and constitutes the occasion on which the court
pronounces the judgment arising from the verdict. (Pen. Code §§ 12, 1191, 1202;
Cal. Rules of Court, rule 4.433(c)(5); see also Apprendi v. New Jersey, supra, 530
U.S. at p. 479, fn. 4.) At sentencing, the court’s function may include resolution
of certain factual issues that relate to the choice of appropriate sentence (subject,
of course, to the limitations of Apprendi v. New Jersey, supra, 530 U.S. 466), but
the court resolves those issues in light of what occurred at trial, including its own
impressions of matters such as the defendant’s demeanor and conduct at trial.
(See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978; see also In re
Lewallen (1979) 23 Cal.3d 274, 281 [“Legitimate facts may come to the court’s
attention . . . through the personal observations of the judge during trial”]; 22A
Cal.Jur.3d (2000) Criminal Law: Post-Trial Proceedings, § 293, p. 201.) Because
of the significance of the trial record and the court’s observations at trial, the usual
procedure is for the person who served as the trial judge to preside at the
sentencing hearing, and this procedure generally is followed in the situation where
resentencing is to occur following remand. (See People v. Strunk (1995) 31
Cal.App.4th 265, 275; People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562;
6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 155,
p. 183.) The trial court is considered to be in the best position to conduct the
resentencing hearing. The preference for a judge who is well informed about the
case serves the interests of both parties, and an alternative practice would impose
heavy burdens on scarce judicial resources. Further, in some cases, an express or
implied term of a plea agreement may dictate that resentencing take place before
the judge who accepted the plea. (See People v. Arbuckle (1978) 22 Cal.3d 749.)
As a procedural matter, a remand for resentencing does not necessarily
constitute, and is not equivalent to, an order for a new trial. On the contrary, when
an appellate court determines that error has occurred below, Penal Code sections
1260 and 1262 grant the reviewing court the authority to select among several
dispositions, including but not limited to reversal of the judgment and the granting
of a new trial. A reviewing court’s remand for resentencing pursuant to Penal
Code section 1260 is but one of these available dispositions and does not
necessarily involve (or itself constitute) a reversal of the judgment or order for
new trial. Under these statutes, a remand for resentencing is permitted “without
the necessity of affording a new trial.” (People v. Matthews (1999) 70
Cal.App.4th 164, 176; see also 6 Witkin & Epstein, Cal. Criminal Law, supra,
Criminal Appeal, §§ 167-168, pp. 413-415.)
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; People v. McGarry
(2002) 96 Cal.App.4th 644, 653; People v. Trapps (1984) 158 Cal.App.3d 265,
273.) 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; People v. Jones (1997) 58 Cal.App.4th 693,
720; People v. Landis (1996) 51 Cal.App.4th 1247, 1255-1256.)
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.) We also have explained that if, after a limited remand involving the
sentence, “the trial court decide[s] 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, 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
limited order that does not disturb the verdict or even necessarily disturb the
judgment and the sentence previously pronounced  is merely one among several
alternatives to the granting of a new trial, and does not itself constitute the
granting of a new trial.
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; People v. Hatch (2000) 22 Cal.4th 260, 272.)
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 [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, “[d]isqualification may be
necessary where the sentence of the original judge indicates an animus
inconsistent with judicial objectivity. It may also be called for where the judge’s
failure to follow the sentencing rules suggests a whimsical disregard of the
sentencing scheme that is incompatible with a judicial effort to comply with its
complex terms. But mere sentencing error, given the complexity of the
determinate sentencing scheme, does not justify removing the trial judge; a mere
failure to comply with its requirements cannot be said to reflect a lack of
objectivity implicating the interests of justice. Nor would sentence reversal in
such a case be likely to cause the sentencing court to lose its objectivity.” (People
v. Gulbrandsen, supra, 209 Cal.App.3d at p. 1562, fn. omitted.) Another court has
agreed that “mere judicial error is not conclusive evidence of bias or grounds for
disqualification [for cause], and this has been held particularly true in cases of
sentencing error . . . .” (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th
1216, 1231 [rejecting the prosecution’s request that the case not be remanded to
the trial judge, who had placed the defendant on probation]; see also People v.
Lewis (1990) 50 Cal.3d 262, 287 [stating the preference that the trial judge rehear
the application for modification of verdict occasioned by this court’s remand in a
capital case]; People v. Crew (1991) 1 Cal.App.4th 1591, 1608, fn. 13 [rejecting
the request of the prosecution that a case remanded for reconsideration of an
automatic motion to modify the jury’s verdict of death be remanded to a judge
other than the trial judge].) We do not find any indication in the language of
section 170.6 that the Legislature intended to alter this practice when it amended
the statute in 1985.
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.) 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 conclude that resentencing
is not a “new trial” within the meaning of the Penal Code or Code of Civil
Procedure section 170.6.6
In reaching a contrary conclusion, the Court of Appeal majority in the
present case relied upon two civil cases. In one of these cases, the trial court,
determining that the defendants had breached a partnership agreement in several
respects, entered a judgment in favor of the plaintiff. On appeal, the Court of
Appeal affirmed the judgment in part, but reversed in part because the trial court
had erred in admitting certain evidence. The appellate court remanded the matter
with directions “ ‘to afford defendants . . . an opportunity to present evidence as to
the circumstances under which the parties entered into the written partnership
agreement.’ ” (Stegs Investments v. Superior Court, supra, 233 Cal.App.3d at
p. 574.)
On remand, the matter was assigned to the original trial judge. Pursuant to
section 170.6, subdivision (2), the defendants moved to disqualify the judge, who
rejected the disqualification motion on the ground that the matter had been
remanded only to address a single issue and not for a complete new trial. The

In People v. Letteer (2002) 103 Cal.App.4th 1308, the Court of Appeal
agreed with a defendant’s assertion that he was entitled to withdraw his guilty plea
pursuant to Arbuckle (People v. Arbuckle, supra, 22 Cal.3d 749) because, at a
resentencing hearing on remand, the prosecution exercised a peremptory challenge
against the trial judge. The Court of Appeal assumed that a peremptory challenge
would lie at a resentencing hearing. This assumption, as we have shown, was not
well founded, and we disapprove Letteer to the extent it is inconsistent with our

Court of Appeal disagreed and issued a peremptory writ of mandate directing the
court to vacate its order. The appellate court explained that section 170.6,
subdivision (2) had been amended in 1985 specifically to permit a challenge when
a trial judge has been assigned to retry a case that has come before him or her on
remand after the judgment was reversed. The Court of Appeal declared: “The
concern expressed by the proponents of the 1985 amendment was that a judge who
had been reversed might prove to be biased against the party who successfully
appealed the judge’s erroneous ruling at the original trial.” (Stegs Investments v.
Superior Court, supra, 233 Cal.App.3d at pp. 575-576.) The court quoted a
legislative committee analysis that described the amendment as “ ‘intended to
permit a party to challenge a judge who had been assigned to conduct the “new
trial” of the case in which his or her decision was reversed on appeal. The term
“new trial” is intended to cover situations where the case is to be re-tried and not
merely remanded with instructions to perform some specific task (e.g., recalculate
interest).’ ” (Id. at p. 576, italics added.)
The appellate court in the Stegs case determined that a section 170.6
challenge may lie on remand even if the case is to be retried on a limited issue.
“The legislative history of the 1985 amendment suggests that the applicability of
that section does not turn on whether the issue(s) to be resolved on remand are
limited, but what the court must do to resolve them.” (Stegs Investments v.
Superior Court, supra, 233 Cal.App.3d at p. 576.) The court contrasted mere
ministerial duties on remand with “an actual retrial,” concluding that a 170.6
motion would lie as to the latter “even if that trial involves only one issue . . . .”
(233 Cal.App.3d at p. 576.)
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 “ ‘[t]here 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.)
Pointing out that its remand order involved “a contested issue in which trial court
discretion or fact determination is involved,” as well as retrial of one of the
contested issues in the original trial, the Court of Appeal in the Hendershot case
liberally construed section 170.6 to permit the challenge. (Hendershot v. Superior
Court, supra, 20 Cal.App.4th at p. 865.)
The Court of Appeal majority in the present case distilled from these two
cases the principle that when, in a particular case, a remand order vests discretion
in the trial court and includes a potential for fact finding, the order contemplates a
new trial and the parties should be permitted to challenge the trial judge pursuant
to section 170.6, subdivision (2). Petitioner, like the Court of Appeal majority,
agrees with the decisions in the Stegs and Hendershot cases and argues that, for
the purpose of determining whether a remand is for the purpose of a “new trial”
within the meaning of section 170.6, subdivision (2), the critical issue is the
function of the court on remand. Sentencing, petitioner observes, is not a
ministerial duty. The particular resentencing decision in his own case, he urges,
calls for the exercise of discretion and the determination of disputed factual issues.
He points out that at his original sentencing hearing, witnesses testified over a
period of two days, and he asserts he intends to present additional evidence at the
resentencing hearing in support of his position.7

Petitioner would have us examine other provisions of the Code of Civil
Procedure for guidance. Noting that section 170.5 sets forth definitions that apply
to challenges for cause, he refers specifically to section 170.5, subdivision (f),
which defines the term “proceeding” to mean “the action, case, cause, motion, or
special proceeding to be tried or heard by the judge.” He contends that the term
“proceeding” should carry this meaning for the purpose of a peremptory challenge,
just as it does for a challenge for cause. Even were we to assume that this claim
has merit, we do not believe that it advances our understanding of the term “new
(footnote continued on next page)

We do not believe that the Stegs and Hendershot cases support the
conclusion that, in a remanded criminal case in which resentencing alone remains
to be performed, the authority to exercise a section 170.6 challenge should hinge
upon a case-by-case analysis of the level of discretion to be exercised by the judge
and the degree of factfinding in which the judge will be engaged. We believe it is
clear that a resentencing hearing in a criminal case does not constitute a new trial.8
The Penal Code contains its own definition of the term new trial  a definition
that, as we have seen, does not encompass a remand for resentencing. Section
170.6 certainly applies both to civil and criminal cases, and we do not consider
current practice in civil and criminal courtrooms in order to “selectively apply the
various provisions of section 170.6, depending on whether a case is criminal or
civil.” (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1184.) On the
other hand, we do not believe that the Legislature contemplated that what
constitutes a new trial in a criminal case for the purposes of section 170.6 would
be defined by the law in civil cases  especially when a specific Penal Code
section defines the term “new trial.” We do not perceive any anomaly in the
Legislature’s intent that the term “new trial” be applied for disqualification
purposes as that term is defined either by the Code of Civil Procedure or by the
Penal Code, depending on the nature of the case  particularly when new trials in
criminal cases implicate constitutional and other issues that normally are not
present when a new trial is ordered in a civil case.

(footnote continued from previous page)
trial”  the term whose meaning we believe is critical to the resolution of the case
before us.
As noted, our opinion does not suggest a peremptory challenge would not
lie after a remand that implicates a defendant’s rights pursuant to Apprendi v. New
, supra, 530 U.S. 466.

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
Stegs, 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, 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 hearing on
remand in a criminal case that calls for the exercise of trial court discretion. Even
the Stegs decision and the legislative history it quotes describe the term “new trial”
as referring to “ ‘situations where the case is to be re-tried’ ”  a situation that is
not presented when the court’s only function on remand is to conduct a new
sentencing hearing. (Stegs Investments v. Superior Court, supra, 233 Cal.App.3d
at p. 576.) Petitioner’s assertion also is incompatible with the evolution of the
1985 amendment as it passed through the Legislature. Initially, the language of
the proposed amendment apparently would have applied to any hearing on
remand, but that language was amended to refer instead to cases in which the trial
judge was assigned to conduct a new trial. (Compare § 170.6, subd. (2), with
Assem. Bill No. 1213 (1985-1986 Reg. Sess.) as introduced Mar. 4, 1985, § 1
[stating that following reversal of a trial court’s decision, a challenge may be made
“upon assignment of the trial judge in the prior proceedings to rehear the
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 Penal Code section 1538.5, subd. (p) requirement
for remand to the original trial judge, despite the filing of a section 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.
Petitioner also urges that section 170.6 is to be liberally construed and that
“the trend is to grant relief unless absolutely forbidden by statute.” (People v.
Superior Court (Maloy) (2001) 91 Cal.App.4th 391, 395.) He refers specifically
to a recent decision holding that a peremptory challenge will lie to disqualify a
trial judge on remand when the Court of Appeal has reversed the judge’s dismissal
of the complaint on the basis of the expiration of the statute of limitations. (Ibid.)
In reaching this decision, the Court of Appeal relied primarily upon a civil case
that held that a section 170.6 motion will lie on remand following the reversal of a
grant of summary judgment, and on the Stegs and Hendershot decisions.
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.
For the foregoing reasons, the judgment of the Court of Appeal is reversed.


* Presiding Justice of the Court of Appeal, Second Appellate District, Division
Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Peracchi v. Superior Court

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 94 Cal.App.4th 209
Rehearing Granted


Opinion No.

Date Filed: June 23, 2003


County: Fresno
Judge: Lawrence Jones


Attorneys for Appellant:

David A. Gottlieb; Nuttall Berman Attorneys and Roger T. Nuttall for Petitioner.


Attorneys for Respondent:

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,
Assistant Attorney General, J. Robert Jibson, Anthony L. Dicce and Janine R. Busch, Deputy Attorneys
General, for Real Party in Interest.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Roger T. Nuttall
Nuttall Berman Attorneys
2333 Merced Street
Fresno, CA 93721
(559) 233-2333

Janine R. Busch
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5178


Opinion Information
Date:Docket Number:
Mon, 06/23/2003S103681

1Peracchi, James (Petitioner)
Represented by Roger T. Nuttall
Nuttall Berman Attorneys
2333 Merced St
Fresno, CA

2Superior Court Of Fresno County (Respondent)
Represented by District Atty - Fresno County
2220 Tulare, Suite 1000
2220 Tulare, Suite 1000
Fresno, CA

3The People (Real Party in Interest)
Represented by Attorney General - Sacramento Office
Janine R. Busch, Deputy
P.O. Box 944255
1300 I St., 11th Floor
Sacramento, CA

Jun 23 2003Opinion: Reversed

Jan 15 2002Petition for review filed
  by counsel (Attorney General) for Real Party in Interest
Jan 17 2002Record requested
  via e-mail J. Lopez
Jan 22 2002Received Court of Appeal record
  one doghouse
Mar 18 2002Time extended to grant or deny review
  to and including April 15, 2002.
Mar 27 2002Petition for Review Granted (criminal case)
  Baxter, J., was recused and did not participate. Chin, J., was absent and did not participate.
Jun 14 2002Counsel appointment order filed
  Central Callifornia Appellate Program is hereby appointed to represent petitioner on his appeal now pending in this court. Petitioner's brief on the merits shall be served and filed on or before thirty (30) days from the date of respondent's opening brief on the merits. (this order vacated 7-25-02)
Jun 27 2002Received:
  from respondent (People) Opening Brief on Merits
Jul 1 2002Application for relief from default filed
  by Atty Gen. for respondent
Jul 2 2002Opening brief on the merits filed
  with permission by counsel (AG) for People (Real Party In Interest)
Jul 24 2002Request for extension of time filed
  for petnr to file the answer brief on the merits. to 9/20
Jul 25 2002Order filed
  Petitioner having informed the court he has retained David Andrew Gottlieb as counsel in this case, the order filed June 14, 2002, appointing the Central Calif Applt Program, is hereby vacated.
Jul 30 2002Extension of time granted
  to 9-20-02 for petnr to file the answer brief on the merits.
Sep 19 2002Answer brief on the merits filed
  with permission by counsel for petitioner( J. Peracchi)
Oct 31 2002Received:
  Amended proof of service from counsel for petitioner (hard copy)
Nov 21 2002Request for extension of time filed
  for aplt to file the reply. 30 days requested.
Nov 27 2002Extension of time granted
  respondent's time to serve and file the reply brief is extended to and including December 10, 2002.
Dec 10 2002Request for extension of time filed
  by (AG) counsel for respondent requesting a (20) day extension to December 30, 2002 to file the reply brief.
Dec 13 2002Extension of time granted
  Respondent's time to serve and file the reply brief is extended to and including December 30, 2002. No further extensions will be granted.
Jan 22 2003Received:
  from (Atty Gen.) counsel for respondent Application for Leave to file (Late) Reply Brief.
Jan 22 2003Reply brief filed (case fully briefed)
  with permission by counsel for respondent.
Jan 29 2003Compensation awarded counsel
  Atty Gillies
Feb 3 2003Case ordered on calendar
  to be called & continued to April (was set for 3-13-03, 9am, S.F.)
Feb 18 2003Filed:
  Application to continue oral argument from counsel for petitioner
Feb 19 2003Filed:
  (by fax) substitution of attorney by petnr.
Feb 19 2003Filed letter from:
  petnr's counsel re scheduling of oral argument. (faxed)
Feb 20 2003Argument rescheduled
  to be called and continued to the April calendar (April 1st)
Mar 6 2003Case ordered on calendar
  4-1-03, 2pm, L.A.
Mar 13 2003Cause called and continued
  to April oral argument calendar.
Apr 1 2003Cause argued and submitted
Jun 23 2003Opinion filed: Judgment reversed
  OPINION BY: George, C.J. ---joined by: Kennard, Werdegar, Chin, Brown, Moreno, Perluss, JJ. (Perluss assigned by the Chief Justice.
Jul 3 2003Rehearing petition filed
  by counsel for petitioner (James Peracchi)
Jul 10 2003Time extended to consider modification or rehearing
  to and including September 19, 2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 10 2003Remittitur issued (criminal case)
Sep 10 2003Rehearing denied
  Baxter, J., was recused and did not participate,
Sep 18 2003Received:
  Receipt for Remittitur from CA 5

Jul 2 2002Opening brief on the merits filed
Sep 19 2002Answer brief on the merits filed
Jan 22 2003Reply brief filed (case fully briefed)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website