Can One File a 170.6 Challenge on 1172.6 Resentencing?

In resentencing, one’s case is assigned to a specific judge for such a hearing. That judge may have a reputation for being “tough on crime” or unpredictable.

In the context of a motion for resentencing under Penal Code § 1172.6 (formerly 1170.95), codifying Senate Bills 1437 and 775???, resentencing can result in a sentence that may be decades less. The stakes are high and life changing, not just for the inmate, but for the inmate’s family and loved ones.

Consequently, if the resentencing hearing is assigned to a “tough on crime” judge, the inmate would want to know if there is any way the hearing can be assigned to another judge.

Elvira Desideria Torres tried this by filing a California Code of Civil Procedure § 170.6 peremptory challenge to have the hearing assigned to another judge. Did it work? No.

To understand why this tactic failed, the factual background of the case is helpful to know.

In 2010 in San Joaquin County Superior Court, an indictment charged Ms. Torres and a co-defendant with among other things, murder and robbery. Various enhancement allegations were also alleged. In 2011, Ms. Torres entered into a plea bargain wherein she agreed to plead guilty to voluntary manslaughter and second degree robbery and admitted using a firearm in the commission of the manslaughter. She was then sentenced to 22 years in state prison.

In 2018, the Legislature passed Senate Bill 1437 to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that liability for murder is not imposed on a person who is not the actual killer, did not act with the specific intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. The bill also added (now former) Penal Code § 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek resentencing.

In 2019, Ms. Torres filed a petition for resentencing pursuant to Penal Code § 1170.95 (now Penal Code § 1172.6), seeking to have her manslaughter conviction vacated and to be resentenced.

At that time, the revised felony murder rule did not allow resentencing on convictions for manslaughter and the trial court summarily denied her petition.

Ms. Torres then appealed to the Third Appellate District in Sacramento. While her appeal was pending, the Governor signed Senate Bill No. 775, which amended Penal Code § 1172.6 to include defendants who were convicted of manslaughter and accepted a plea in lieu of trial in which the defendant could have been convicted of murder or attempted murder.

The Third Appellate District therefore reversed the trial court order denying Ms. Torres’ request for resentencing and remanded the case with directions to appoint counsel for Ms. Torres and conduct further proceedings consistent with Penal Code § 1172.6.

The case was assigned to Judge George J. Abdallah, Jr., the judge who took petitioner’s plea, originally sentenced her and initially summarily denied her petition for resentencing before Senate Bill 775 became the law.

Ms. Torres immediately filed a California Code of Civil Procedure (C.C.P.) § 170.6 peremptory challenge to Judge Abdallah’s assignment to her case, arguing that “further proceeding” contemplated were tantamount to a “new trial” as allowed under C.C.P. § 170.6.

Judge Abdallah permitted the challenge and the case was reassigned to Judge Thomasson.

Ultimately, the challenge was reconsidered and denied, with the explanation that “further proceedings” pursuant to § 1172.6 on remand did not constitute conducting a new trial, but rather just conducting resentencing in the came matter and thus § 170.6 did not permit Ms. Torres’ challenge.

Judge Thomasson referenced Penal Code § 1172.6(b)(1), which provides that “[i]f the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition” and concluded that section required the “matter go back to . . . the sentencing court.”

Ms. Torres then filed a petition for writ of mandate to the Third District Court of Appeal, which affirmed the denial of the 170.6 peremptory challenge, agreeing that a remand for resentencing does not constitute a “new trial” as contemplated by C.C.P. § 170.6(a)(2) and thus the peremptory challenge was properly denied.

We bring this summary of this case to the reader’s attention because obviously, the original sentencing judge most likely will remember defendant’s defenses in the case, the prosecutor arguments, and any bad behavior by defendant or shady behavior by defense counsel and/or the prosecutor leading up to the plea, so that judge can be uniquely aware of the nuances of the case and resentencing may reflect much more than just the statutory requirements.