Filed 9/10/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ASMIK AKOPYAN, B304957
Petitioner, (Los Angeles County
Super. Ct. No. BC495137)
v.
ORDER MODIFYING
THE SUPERIOR COURT OF OPINION
LOS ANGELES COUNTY,
NO CHANGE IN
Respondent; APPELLATE JUDGMENT
ZULMA UNZUETA,
Real Party in Interest.
THE COURT:
The above-entitled opinion filed on August 24, 2020 is
modified as follows:
1. On page 6, footnote 4, replace the phrase “Judge
Mohr will not recall the voir dire that took place in 2012” with
“Judge Mohr will not recall the voir dire that took place in 2017.”
2. On page 13, replace the last sentence of the first full
paragraph that reads, “Here too, unless and until the trial court
decides to grant the Batson/Wheeler motion (or decide it is
unable to decide the motion), and orders a new trial,
Dr. Akopyan’s section 170.6 challenge is premature and should
not be granted,” with “Here too, unless and until the trial court
decides to grant the Batson/Wheeler motion (or decide it is
unable to decide the motion) and orders a new trial, Unzueta’s
section 170.6 challenge is premature and should not be granted.”
There is no change in the judgment.
PERLUSS, P. J. SEGAL, J. FEUER, J.
2
Filed 8/24/20 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ASMIK AKOPYAN, B304957
Petitioner, (Los Angeles County
Super. Ct. No. BC495137)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
ZULMA UNZUETA,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate.
Anthony J. Mohr, Judge. Petition granted.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson;
Packer, O’Leary & Corson, Robert B. Packer and Paul M. Corson
for Petitioner.
No appearance for Respondent.
McMurray Henriks and Yana G. Henriks for Real Party in
Interest.
Petitioner Asmik Akopyan, M.D., seeks a writ of mandate
compelling the trial court to vacate its order granting real party
in interest Zulma Unzueta’s peremptory challenge to Judge
Anthony J. Mohr under Code of Civil Procedure section 170.61
filed after this court conditionally reversed the judgment entered
after a jury trial in favor of Dr. Akopyan on Unzueta’s claim for
medical malpractice. Unzueta argued on appeal the trial court
erred in denying the Batson/Wheeler2 motion the court made sua
sponte after Dr. Akopyan’s attorney exercised peremptory
challenges to six Hispanic prospective jurors out of his seven total
challenges. We agreed and conditionally reversed for the limited
purpose of conducting the second and third steps of the
Batson/Wheeler inquiry as to all six challenged Hispanic jurors.
(Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 202 (Akopyan I).)
Dr. Akopyan contends in his petition that section 170.6,
subdivision (a)(2), which authorizes a peremptory challenge
following reversal on appeal where the trial court is assigned to
conduct a new trial, does not authorize a challenge following a
conditional reversal where the remand is for the purpose of
requiring the trial court to reconsider a pretrial Batson/Wheeler
motion. We agree the trial court has not yet been “assigned to
conduct a new trial” on remand under section 170.6, subdivision
(a)(2). Therefore, the trial court should have waited to rule on
the peremptory challenge until it conducted the Batson/Wheeler
inquiry, then granted the disqualification motion only if it
ordered a new trial. We now grant the petition.
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Unzueta’s Prior Lawsuit and Appeal
Unzueta filed this action in 2012, alleging Dr. Akopyan
committed medical malpractice in the delivery of Unzueta’s first
child. Unzueta alleged Dr. Akopyan’s negligent administration of
an epidural injection resulted in paralysis of her right leg.
On the second day of jury selection, defense counsel
exercised four peremptory challenges to excuse prospective jurors
R. Medina, J. Quintero, G. Henriquez, and R. Villarreal. That
day the jury panel was sworn. The next day, when voir dire
continued for the selection of alternate jurors, defense counsel
exercised three peremptory challenges to excuse prospective
jurors D. Winfrey, D. Zaldana, and A. Marquez, two of whom
were Hispanic. Outside the presence of the jury, the trial court
made a sua sponte Batson/Wheeler motion, which Unzueta
joined. The court then asked defense counsel to justify his
peremptory challenges as to Zaldana and Marquez, but not the
four Hispanic jurors who had been excused the prior day. The
court denied Unzueta’s request the court inquire about the prior
four jurors, stating “that water is under the bridge.” The court
denied the Batson/Wheeler motion, finding defense counsel had
justified his use of peremptory challenges as to the alternate
jurors.
After a trial, the jury returned a special verdict for
Dr. Akopyan, finding she was negligent in the care and treatment
of Unzueta, but the negligence was not a substantial factor in
causing harm to Unzueta.
On appeal, we concluded the trial court erred by failing to
require defense counsel to provide his justifications for excusing
3
all six Hispanic prospective jurors, explaining, “Once the trial
court found a prima facie showing of group bias, the court was
required to elicit from [defense counsel] justifications for each of
the six challenges forming the basis for the prima facie showing.”
(Akopyan I, supra, 42 Cal.App.5th at p. 217.) We remanded for
the trial court to require defense counsel to state his reasons for
challenging prospective jurors Medina, Quintero, Henriquez, and
Villarreal, and then decide in light of the record as to all six
jurors whether Unzueta had proved purposeful racial
discrimination. (Id. at p. 223.) We instructed the trial court that
if it “finds, because of the passage of time or other reason, it is
unable to conduct the evaluation, or if any of the challenges to
the six Hispanic prospective jurors were based on racial bias, the
court should set the case for a new trial. If the court finds
defense counsel’s race-neutral explanations are credible and he
exercised the six peremptory challenges in a permissible fashion,
the court should reinstate the judgment.” (Id. at pp. 223-224.) In
all other respects, we affirmed.
B. Proceedings on Remand
On remand, in a January 29, 2020 minute order, the trial
court (Judge Mohr) set a hearing “re: Remand/Remittitur” for
February 21, 2020. On February 26 Unzueta filed a motion
under section 170.6, subdivision (a)(2), to disqualify Judge Mohr,
who had presided over the trial.3 On March 2 the trial court
granted Unzueta’s disqualification motion, finding the challenge
was timely filed and proper because the court on remand was
required “to make a factual determination after evidentiary
3 It does not appear from the record the February 21, 2020
hearing took place.
4
hearing” and potentially a new trial on the merits. The court
ordered the matter transferred to Judge John J. Kralik.
On March 16, 2020 Dr. Akopyan filed a petition for writ of
mandate directing the trial court to vacate its order accepting
Unzueta’s peremptory challenge. Following supplemental
briefing, on April 15, 2020 we issued an order to show cause why
relief should not be granted. Unzueta filed a return, and
Dr. Akopyan filed a reply.
DISCUSSION
A. Standard of Review
“We review questions of statutory construction de novo.
Our primary task ‘in interpreting a statute is to determine the
Legislature’s intent, giving effect to the law’s purpose.’”
(California Building Industry Assn. v. State Water Resources
Control Bd. (2018) 4 Cal.5th 1032, 1041; accord, A.J. Fistes Corp.
v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 687.) To
determine whether a conditional reversal and remand for the
limited purpose of conducting the second and third steps of the
Batson/Wheeler inquiry is a “new trial” within the meaning of
section 170.6, subdivision (a)(2), we look first to the language of
the statute, which is “the best indication of legislative intent.”
(Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1253
(Peracchi); see California Building, at p. 1041.) “‘[W]e 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.”’”
(Peracchi, at p. 1253; accord, California Building, at p. 1041.)
“‘“If the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
5
statute’s purpose, legislative history, and public policy.”’” (City of
San Jose v. Superior Court (2017) 2 Cal.5th 608, 616-617; accord,
Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567
[“‘When a statute is capable of more than one construction, “‘[w]e
must . . . give the provision a reasonable and commonsense
interpretation consistent with the apparent purpose and
intention of the lawmakers, practical rather than technical in
nature, which upon application will result in wise policy rather
than mischief or absurdity.’”’”].)4
4 An order determining the disqualification of a judge may be
reviewed by writ of mandate. (§ 170.3, subd. (d).) Unzueta
contends writ relief is not appropriate, arguing Dr. Akopyan will
not suffer irreparable harm if relief is not granted because there
is not an adequate record on which Judge Mohr can perform the
second and third steps of the Batson/Wheeler analysis and, as a
matter of “common sense,” Judge Mohr will not recall the voir
dire that took place in 2012. However, “our issuance of the order
to show cause determined, in effect, that petitioners’ remedy at
law was inadequate [citation], thus making writ review proper.”
(Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 476-477;
accord, Marron v. Superior Court (2003) 108 Cal.App.4th 1049,
1056.) It will be up to Judge Mohr in the first instance to
determine whether he can perform an evaluation of defense
counsel’s justifications for his peremptory challenges. The
possibility that Judge Mohr may decide he cannot perform the
Batson/Wheeler evaluation, leading him to set the case for a new
trial, is not a valid basis for denying writ relief.
6
B. A Limited Remand To Conduct a Batson/Wheeler Inquiry
After Trial Does Not Constitute a “New Trial” Under
Section 170.6, Subdivision (a)(2)
“Section 170.6 allows a defendant to bring a motion—
supported by an affidavit or declaration—alleging that the
assigned judge ‘is prejudiced against a party or attorney’ such
that the party or attorney ‘cannot, or believes that he or she
cannot, have a fair and impartial trial or hearing before the
judge.’ ([Id.], subd. (a)(1), (2).) So long as the requirements for
filing such a motion are followed, section 170.6 requires a
different judge to be assigned in lieu of the originally assigned
one. (Id., subd. (a)(4).)” (People v. Perez (2018) 4 Cal.5th 421,
439; accord, Peracchi, supra, 30 Cal.4th at p. 1248 [“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.”].)
Section 170.6, subdivision (a)(2), provides in relevant part,
“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.
Notwithstanding paragraph (4), 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. The motion shall be made
within 60 days after the party or the party’s attorney has been
notified of the assignment.”
In Peracchi, a criminal defendant petitioned for a writ of
mandate after the trial court denied his disqualification motion
7
under an earlier version of section 170.6, subdivision (a)(2),5 after
the Court of Appeal reversed his conviction on one of two counts
and remanded to the trial court for a retrial of the reversed count
or resentencing. (Peracchi, supra, 30 Cal.4th at p. 1250.) On
remand, the case was assigned to the judge who had presided at
trial. (Ibid.) The defendant petitioned to disqualify the judge
pursuant to section 170.6. (Peracchi, at p. 1250.) At a hearing,
the judge “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.” (Ibid.) After the
prosecutor stated the reversed count would not be retried, the
judge denied the challenge and set the matter for a sentencing
hearing. (Ibid.)
To determine whether the trial court improperly denied the
defendant’s challenge under section 170.6, the Supreme Court
looked to the meaning of a “new trial,” which Penal Code section
1179 defined as “‘a reexamination of the issue in the same Court,
before another jury, after a verdict has been given.’” (Peracchi, at
p. 1253.) The Court also considered that under Penal Code
section 1180, “‘[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 . . . .’”
(Peracchi, at p. 1253.) The Court reasoned that the trial court’s
5 The court in Peracchi relied upon section 170.6, former
subdivision (2) (Peracchi, supra, 30 Cal.4th at p. 1250), which as
part of a 2003 amendment was moved to section 170.6,
subdivision (a)(2), without substantive change.
8
“function at sentencing . . . ensures that resentencing cannot
occur ‘as if no trial had been had.’” (Id. at p. 1254.) To the
contrary, the resentencing hearing is “the occasion on which the
court pronounces the judgment arising from the verdict.” (Ibid.)
The Court acknowledged that at sentencing “the court’s function
may include resolution of certain factual issues that relate to the
choice of appropriate sentence,” but explained the trial court
“resolves those issues in light of what occurred at trial.” (Ibid.)
Further, “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.” (Ibid.)
The Peracchi court concluded the term “new trial,” as used
in section 170.6, subdivision (a)(2), should be interpreted by
reference to the definition the term is given in the Code of Civil
Procedure or the Penal Code, depending on which code applies.
(Peracchi, supra, 30 Cal.4th at p. 1261.) As the Supreme Court
observed, section 656 of the Code of Civil Procedure, which “has
been construed quite broadly,” 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.” (Peracchi, at p. 1259; accord,
Burdusis v. Superior Court (2005) 133 Cal.App.4th 88, 92
(Burdusis).) The Supreme Court rejected the argument “a section
170.6 challenge should be permitted at any hearing in which
there is any potential for bias,” and 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.” (Peracchi, at
p. 1261.)
9
As we explained in Geddes v. Superior Court (2005)
126 Cal.App.4th 417 (Geddes), appellate courts have included
within the definition of a “new trial” in civil cases under section
170.6, subdivision (a)(2), “(1) reversal of a summary judgment
motion on the merits; (2) remand for an evidentiary hearing and
factual determination after a bench trial in a civil action where
the judgment was reversed on appeal; [and] (3) dismissal of a
civil action at the pleading stage where the matter was remanded
for a factual determination on the merits of the defendants’ anti-
SLAPP motion . . . .” (Geddes, at p. 423.)
However, where the Court of Appeal reverses and remands
for redetermination of a motion that does not involve an
evaluation of the merits of the underlying action, section 170.6,
subdivision (a)(2), is not triggered. (See Burdusis, supra,
133 Cal.App.4th at p. 93 [reversal of ruling on pretrial motion for
class certification did not trigger § 170.6 because the trial court in
ruling on the motion “did not address the merits, nor did it
terminate the action, [and thus] there has been no trial”]; State
Farm Mutual Automobile Ins. Co. v. Superior Court (2004)
121 Cal.App.4th 490, 502 (State Farm) [reversal of trial court’s
pretrial motion determining applicable law did not support
challenge under § 170.6, subd. (a)(2), because the trial court did
not yet “‘try’ any of plaintiffs’ causes of action; it merely
decided . . . which state’s law will apply when the case is tried or
otherwise adjudicated”].)
A Batson/Wheeler hearing—like motions for class
certification and to determine the applicable law at issue in
Burdusis and State Farm—is not a trial because it does not
terminate the case or resolve its merits. As the State Farm court
reasoned, “Just as an in limine motion is not itself a ‘trial,’
neither was State Farm’s Motion to Determine Applicable Law.”
10
(Id. at p. 503.) So too here. A Batson/Wheeler motion is a
pretrial motion to evaluate whether a party’s exercise of
peremptory challenges against potential jurors was
impermissibly motivated by purposeful discrimination. (See
People v. Smith (2018) 4 Cal.5th 1134, 1146-1147 [identifying
Batson/Wheeler as a pretrial issue]; People v. Williams (2013)
56 Cal.4th 630, 649 [same].)
In Akopyan I, we remanded for the trial court to reconsider
its denial of its sua sponte Batson/Wheeler motion in light of
defense counsel’s justifications for his first four peremptory
challenges. (Akopyan I, supra, 42 Cal.App.5th at p. 223.) We
instructed the court to set the case for a new trial only if it first
found it was unable to conduct the Batson/Wheeler evaluation
(because of the passage of time or other reason), or any of the
challenges to the six Hispanic prospective jurors were based on
racial bias. (Ibid.) We further instructed that if the court found
after evaluation of defense counsel’s justifications there was no
Batson/Wheeler violation, the court should reinstate the
judgment. (Id. at pp. 223-224.)
Unzueta argues that even if the trial court’s
Batson/Wheeler determination was not a trial because it did not
resolve the underlying merits or terminate the case, her motion
to disqualify Judge Mohr was proper because it was made after a
trial and entry of judgment in the case. Not so. As we explained
in Geddes, supra, 126 Cal.App.4th at page 424, “a retrial is a
‘reexamination’ of a factual or legal issue that was in controversy
in the prior proceeding.” In Geddes, we reversed and remanded
the trial court’s grant of summary judgment based on the court’s
failure to comply with the requirement it specify the reasons for
granting the motion. (Ibid.) Although a reversal of a summary
judgment motion on the merits is considered a grant of a new
11
trial (ibid; State Farm, supra, 121, Cal.App.4th at p. 497), we
concluded our reversal of the judgment did not support a
peremptory challenge under section 170.6, subdivision (a)(2),
because “we did not remand the case for reconsideration of the
merits of the ruling, and such a fundamental reexamination of
the motion [was] unnecessary.” (Geddes, at p. 424; accord,
Paterno v. Superior Court (2004) 123 Cal.App.4th 548, 560
(Paterno) [reversal of determination of liability at trial as to one
defendant and remand for a trial on damages was not a “new
trial” for purposes of peremptory challenge because under § 656,
the remand did not require a reexamination of a factual or legal
issue that was in controversy in the first trial].)6
As the Paterno court explained, “All liability issues have
been fully and finally settled by our decision in Paterno II. The
only task the judge must complete is to conduct a trial to
determine the amount of damages petitioners have suffered as a
result of the flood, and to enter judgment accordingly. Judge
Golden’s function at this point is not to go back and revisit any
factual or legal terrain that has thus far been traversed, but to go
forward with a trial on the issue of damages. While the analogy
is not perfect, the judge’s assignment after remand here bears
considerable resemblance to the postverdict sentencing hearing
6 First Federal Bank of California v. Superior Court (2006)
143 Cal.App.4th 310, relied on by Unzueta, is not to the contrary.
There, this court concluded a section 170.6 challenge on remand
following affirmance of a judgment after trial, but reversal of the
denial of an attorneys’ fees motion, was proper because the court
treated reconsideration of the attorneys’ fees motion as a new
trial. As discussed, the Batson/Wheeler pretrial motion did not
constitute a trial on the merits for purposes of section 170.6.
12
conducted by the trial judge in Peracchi, supra, 30 Cal.4th 1245.”
(Paterno, supra, 123 Cal.App.4th at p. 560.)
Although our conditional reversal of the judgment requires
the trial court to reexamine its prior Batson/Wheeler ruling
following a full trial on the merits, and the trial court’s resolution
of that inquiry may result in the setting of a new trial, as in
Geddes and Paterno, we did not remand for reconsideration of a
ruling on the merits of the case. Similarly, the reversal in
Peracchi, supra, 30 Cal.4th at page 1249 followed a trial on the
merits, and as the Supreme Court observed, “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.” (Id. at p. 1254,
fn. 5.) But in light of the decision by the prosecutor not to retry
the petitioner, the resentencing following a trial did not support a
preemptory challenge. (Id. at pp. 1254, fn. 5, 1257-1258.) Here
too, unless and until the trial court decides to grant the
Batson/Wheeler motion (or decide it is unable to decide the
motion), and orders a new trial, Dr. Akopyan’s section 170.6
challenge is premature and should not be granted.7
7 Stubblefield Construction Co. v. Superior Court (2000)
81 Cal.App.4th 762, 764-765, relied on by Unzueta, is not to the
contrary. There, the Court of Appeal determined section 170.6
permitted a new peremptory challenge on remand after partial
reversal of the trial court’s grant of summary judgment.
(Stubblefield, at p. 764.) In so doing, the court stated, “Although
there was no full trial of the matter in this case, a final judgment
was entered. Our partial reversal requires that the case be
reopened, with an actual trial if necessary; furthermore, our
partial reversal reflected our view that the trial judge erred in a
crucial decision of law.” (Id. at p. 766.) As discussed, resolution
13
We also find instructive the Peracchi court’s consideration
of the fact “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.” (Peracchi,
supra, 30 Cal.4th at p. 1261.) The same policy consideration
weighs in favor of having Judge Mohr, who observed the
demeanor of the jurors and defense counsel in ruling on his sua
sponte Batson/Wheeler motion, preside over the reevaluation of
the motion on remand because he is uniquely well-positioned to
evaluate defense counsel’s justifications. The Legislature’s
concern for the potential that section 170.6 “‘may be abused by
parties seeking . . . to obtain a favorable judge’” (Maas v. Superior
Court (2016) 1 Cal.5th 916, 973) also cautions us against a broad
reading of section 170.6, subdivision (a)(2), to authorize a
peremptory challenge to litigants after a conditional reversal on
appeal where remand is for the limited purpose of resolving a
pretrial motion such as this.
of a motion for summary judgment “constitute[s] a ‘trial’” for
purposes of section 170.6, subdivision (a)(2). (State Farm, supra,
121 Cal.App.4th at p. 501.) We do not read Stubblefield to mean
section 170.6 permits a new challenge after a reversal any time
the trial court may conduct “an actual trial if necessary”
regardless of the nature of the reversal or the judicial task the
judge is called on to perform. (Stubblefield, at p. 767.) Further,
such a broad reading of section 170.6 runs counter to the
Supreme Court’s holding in Peracchi, supra, 30 Cal.4th at pages
1261 to 1262, as well as our holding in Burdusis, supra, 133
Cal.App.4th at page 90, in which we concluded section 170.6 does
not permit a peremptory challenge on remand following reversal
of an order resolving a pretrial motion that does not terminate or
address the merits of the case.
14
We reject Unzueta’s argument her disqualification motion
was appropriate because this court’s remand required the trial
court to perform more than a “ministerial” act. Contrary to
Unzueta’s contention, “application of section 170.6(a)(2) does not
rest solely on whether the trial judge is to perform a ministerial
task after reversal.” (State Farm, supra, 121 Cal.App.4th at
p. 503; accord, Paterno, supra, 123 Cal.App.4th at p. 561, fn. 8
[“We disagree . . . that whenever a trial judge on remand ‘will be
acting in more than a ministerial manner’ the hearing constitutes
a ‘new trial’ for purposes of section 170.6(a)(2).”].)8
Unzueta’s argument “potential for bias exists” if Judge
Mohr presides over the Batson/Wheeler inquiry is also not
persuasive. Although “[p]rotecting parties from the bias that a
trial judge might exhibit after a reversal is a laudable goal, [it is]
8 It is true that if the judicial task to be performed on
remand is ministerial in nature, “no new peremptory challenge is
permitted by section 170.6.” (Geddes, supra, 126 Cal.App.4th at
p. 424, fn. 4.) But the converse is not true. Section 170.6 does
not permit a new challenge after reversal for all nonministerial
tasks. (See Peracchi, supra, 30 Cal.4th at p. 1260 [criminal
sentencing is not a ministerial duty, but no new § 170.6 challenge
is permitted on remand for resentencing]; Andrew M. v. Superior
Court (2020) 43 Cal.App.5th 1116, 1120-1121, 1127 [conditional
reversal and limited remand to juvenile court to conduct a
transfer hearing pursuant to Proposition 57, the Public Safety
and Rehabilitation Act of 2016 (Cal. Const., art. I, § 32) “is not . . .
a ‘new trial’ under section 170.6 merely because the court will
exercise discretion or make factual findings”]; Burdusis, supra,
133 Cal.App.4th at p. 90 [no new § 170.6 challenge permitted on
remand following reversal of order denying class certification to
allow trial court to consider new decisional law filed after the
appeal].)
15
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 [(a)](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 . . . .”
(Peracchi, supra, 30 Cal.4th at p. 1262; accord, Geddes, supra,
126 Cal.App.4th at pp. 424-425.)
We acknowledge Unzueta’s concern she would be deprived
of her right to file a peremptory challenge as to Judge Mohr if she
did not promptly file her peremptory challenge. Section 170.6,
subdivision (a)(2), authorizes a peremptory challenge following a
reversal “if the trial judge in the prior proceeding is assigned to
conduct a new trial on the matter. . . . The motion shall be made
within 60 days after the party or the party’s attorney has been
notified of the assignment.” Because Judge Mohr has not yet
ordered a new trial, Unzueta has not yet been “notified” of Judge
Mohr’s assignment to handle a possible new trial on remand. But
even if we were to read the trial court’s January 29, 2020 minute
order setting a hearing after remand as notification of a possible
new trial, the court should have deferred ruling on Unzueta’s
section 170.6 motion pending resolution of the Batson/Wheeler
inquiry. Just as the trial court in Peracchi, supra, 30 Cal.4th at
page 1250 announced the defendant’s peremptory challenge
would be granted if the prosecution elected to retry the reversed
count, but denied if it did not, Judge Mohr likewise could have
announced he would grant the challenge only if he ordered a new
trial, then waited to rule on the challenge until the conclusion of
the Batson/Wheeler hearing. The court’s determination of the
section 170.6 challenge at that point would have been timely
because it would precede any ruling on the contested issues at
trial. (See Frisk v. Superior Court (2011) 200 Cal.App.4th 402,
16
408 [“Trial courts must act upon peremptory challenges at the
first available opportunity, before ruling on contested issues, lest
this important right be lost or diminished through procedural
tactics or maneuvers.”].)
DISPOSITION
The petition is granted. A peremptory writ of mandate
shall issue directing respondent superior court to vacate its
March 2, 2020 order granting Unzueta’s motion to disqualify
Judge Mohr and to enter a new order deferring a ruling on the
motion until after resolution of the Batson/Wheeler inquiry.
Dr. Akopyan is to recover her costs in this writ proceeding.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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