170.6 challenge brought in habeas challenging conditions of confinement is untimely

Garcia v. Superior Court of Riverside County (Cal. Ct. App., May 30, 2023, No. E080436) 2023 WL 3718448, at *1

Summary: Garcia was diagnosed as having porphyria, a rare condition that is potentially fatal, especially if not properly treated. During an attack of porphyria, the skin becomes extremely sensitive to sunlight; sun exposure can cause burning pain and blisters.

Garcia while awaiting trial on charges including murder made a series of requests in that case, for testing, evaluation, treatment, and preventive measures to deal with his porphyria. The trial Judge Anthony R. Villalobos denied Garcia’s ex parte application for multiple measures — including being given protective clothing, being kept out of direct sunlight, and being transported only in air-conditioned vehicles with tinted windows.

Garcia later filed a petition for writ of habeas corpus. He alleged that the jail’s failure to deal properly with his porphyria constituted cruel and unusual punishment and violated the Americans with Disabilities Act. The case was assigned to Judge Villalobos. Garcia promptly filed a peremptory challenge to Judge Villalobos under Code of Civil Procedure section 170.6 (section 170.6). Judge Villalobos denied the section 170.6 challenge as untimely; he reasoned that the habeas proceeding was a continuation of the criminal action.

Garcia filed a petition for writ of mandate to require Judge Villalobos to grant his section 170.6 challenge.

It is well-established that, for purposes of section 170.6, a habeas proceeding can be a continuation of a criminal action — typically, because they both involve overlapping issues going to guilt and/or sentencing. Here, the issues in the habeas proceeding are limited to the conditions of confinement. Since Garcia injected issues of the conditions of confinement into the criminal action, the habeas proceeding is a continuation of the criminal action. Hence, Judge Villalobos correctly rejected the section 170.6 challenge as untimely.

Section 170.6 gives litigants the right to peremptorily challenge a superior court judge based on a good faith belief that the judge is prejudiced. When a motion under section 170.6 timely filed, the judge is not permitted to try the assigned civil or criminal action or special proceeding, or to hear ‘any matter therein that involves a contested issue of law or fact.’ [Citation.]” (Maas v. Superior Court (2016) 1 Cal.5th 962, 969-970, 209 Cal.Rptr.3d 571, 383 P.3d 637 (Maas).) Section 170.6 applies in a habeas proceeding. (Maas, supra, at p. 970, 209 Cal.Rptr.3d 571, 383 P.3d 637.)

When a criminal case has been assigned to a judge for all purposes, any section 170.6 challenge must be filed “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.” (§ 170.6, subd. (a)(2).)

Moreover, “ ‘[a] peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action.’ ” (Birts v. Superior Court (2018) 22 Cal.App.5th 53, 58, 231 Cal.Rptr.3d 187.) “[W]hen a second action or special proceeding ‘involves “substantially the same issues” ’ and ‘ “matters necessarily relevant and material to the issues” ’ in the original case, the second action or proceeding is considered a continuation of the earlier action or proceeding for purposes of section 170.6. [Citation.]” (Maas, supra, 1 Cal.5th at p. 979, 209 Cal.Rptr.3d 571, 383 P.3d 637; accord, McClenny v. Superior Court (1964) 60 Cal.2d 677, 684, 36 Cal.Rptr. 459, 388 P.2d 691.) “ ‘The [continuation] rule is designed to prevent forum shopping.’ [Citation.]” (Birts, supra, at p. 58, 231 Cal.Rptr.3d 187.)

A habeas proceeding can be a continuation of a criminal action. In Yokley v. Superior Court (1980) 108 Cal.App.3d 622, 166 Cal.Rptr. 657 (Yokley), in the criminal action, the defendant pleaded guilty. (Id. at p. 624, 166 Cal.Rptr. 657.) He then filed a habeas petition, alleging that he had been mentally incompetent to plead guilty and that his counsel had rendered ineffective assistance. (Id. at p. 623, 166 Cal.Rptr. 657.) The habeas proceeding was assigned to the same judge who had taken the guilty plea. The defendant filed a section 170.6 challenge; it was denied as untimely. (Id. at p. 624, 166 Cal.Rptr. 657.) The appellate court held that the habeas proceeding was a continuation of the criminal action (id. at pp. 624-628, 166 Cal.Rptr. 657): “The factual issues to be resolved relate directly to the criminal proceeding and involve matters necessarily relevant and material to the issues involved in the original action, and thus constitute a continuation of the original action.” (Id. at p. 628, 166 Cal.Rptr. 657; see also Maas, supra, 1 Cal.5th at pp. 979-980, 209 Cal.Rptr.3d 571, 383 P.3d 637 [approving Yokley].)

Here,  the habeas proceeding does not relate to guilt, innocence, or the validity of any eventual conviction or sentence. It relates solely to the conditions of Garcia’s pretrial confinement. However, the criminal action also related, at least in part, to the conditions of Garcia’s pretrial confinement. Garcia chose to raise, in the criminal action, such issues related to his treatment for porphyria. Therefore,  the habeas proceeding “ ‘involves “substantially the same issues,” ’ ” or at a minimum, “ ‘ “matters necessarily relevant and material to the issues,” ’ ” in the criminal action. (See Maas, supra, 1 Cal.5th at p. 979, 209 Cal.Rptr.3d 571, 383 P.3d 637.)

Because, the criminal action was assigned to Judge Villalobos for all purposes on June 30, 2020, in open court, the time to bring a section 170.6 challenge expired 10 days after notice of the all purpose assignment — i.e., on July 10, 2020. Hence, it had already expired long before the habeas proceeding was filed.

Judge Villalobos properly denied Garcia’s  170.6 challenge as untimely.

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