Maas v. Superior Court of San Diego County

Filed 11/7/16

IN THE SUPREME COURT OF CALIFORNIA

MICHAEL EUGENE MAAS, )
)
Petitioner, )
) S225109
v. )
) Ct.App. 4/1 D064639
THE SUPERIOR COURT OF )
SAN DIEGO COUNTY, )
) San Diego County
Respondent; ) Super. Ct. Nos. SCE185960,
) SCE188460
)
THE PEOPLE, )
)
Real Party in Interest. )
____________________________________)

Code of Civil Procedure section 170.61 affords 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 is in proper form and
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.” (§ 170.6, subd. (a)(1).) We granted review to decide whether the
statute contemplates that a party may challenge the judge assigned to assess and

1 All further undesignated statutory references are to the Code of Civil
Procedure.

1
rule on a petition for writ of habeas corpus, at the initial stage of the habeas corpus
process, before an order to show cause with respect to the petition‟s claims has
been issued.
We conclude that, like a superior court judge‟s resolution of a petitioner‟s
claims after issuance of an order to show cause, the initial assessment of a petition
for writ of habeas corpus to determine whether the petitioner has stated a prima
facie case for relief requires the judge to hear “a contested issue of law or fact” in
a special proceeding, within the meaning of section 170.6. Accordingly, we hold
that a petitioner who requests the name of the judge assigned to examine his or her
habeas corpus petition is entitled to notice of that assignment, and also is entitled
to peremptorily challenge the assigned judge, so long as all of the procedural
requirements of section 170.6 have been satisfied, including the requirement that
the assigned judge not have participated in the petitioner‟s underlying criminal
action.
The Court of Appeal in this case reached the same conclusion and issued a
writ of mandate directing the superior court to reassign the assessment of Maas‟s
petition for writ of habeas corpus to a judge other than the judge who originally
reviewed, and then summarily denied, his petition. The Court of Appeal‟s
judgment is affirmed.
I. FACTS
In April 1998, a jury convicted petitioner Michael Maas of grand theft of an
automobile (Pen. Code, § 487, subd. (d)(1)), and unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a)). In a bifurcated proceeding, Superior
Court Judge Allan J. Preckel found true the allegation that Maas had suffered two
prior “strikes” (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), and sentenced him to
25 years to life.

2
 Four months later, in August 1998, a different jury found Maas guilty of
burglary and forgery of a fictitious check in a trial presided over by Superior Court
Judge Larrie R. Brainard. (Pen. Code, §§ 459, 470.) After finding true the
allegations that Maas had suffered two prior strikes, Judge Brainard sentenced him
to 25 years to life and set that term to run consecutively to Maas‟s other sentence.
Both judgments were upheld by the Court of Appeal.
Nearly 15 years later, on July 13, 2013, Maas filed a petition for writ of
habeas corpus in the San Diego County Superior Court, alleging that he had
received ineffective assistance of counsel in the August 1998 proceedings because
his trial attorneys failed to properly challenge the prior felony convictions that led
to imposition of two consecutive sentences under the “Three Strikes law.” On
July 19, about one week after filing his petition, Maas wrote to the court clerk,
asking for the case number, the date of filing, and the name of the judge assigned
to his petition. Ten days later, on July 29, Maas received a photocopy of the
petition‟s cover page, which had been file stamped with the date July 17, 2013.
About one week after that, in a letter dated August 4, Maas again wrote to the
court clerk, repeating his request for the name of the assigned judge. Three days
later, Superior Court Judge John M. Thompson summarily denied Maas‟s habeas
corpus petition; that is, he denied it without having issued a writ of habeas corpus
or an order to show cause. Judge Thompson explained in his four-page denial
order that Maas‟s claims were procedurally barred because he had failed to justify
his substantial delay in raising the challenge to his Three Strikes sentences, and he
had not established good cause for revisiting arguments that previously had been
raised and rejected on appeal.
Maas then filed a new petition for writ of habeas corpus in the Court of
Appeal, again alleging ineffective assistance of counsel and challenging his
sentence. In addition, Maas complained about the court clerk‟s failure to timely

3
notify him of Judge Thompson‟s assignment. In connection with this assertion,
Maas attached to his habeas corpus petition a declaration in which he averred
under penalty of perjury that had he been informed that Judge Thompson was
assigned to review his petition for writ of habeas corpus, he would have followed
the advice of his brother and moved to disqualify Judge Thompson for bias
pursuant to section 170.6.
The Court of Appeal requested and received from the Attorney General an
informal response to Maas‟s complaint that he was denied his statutory right under
section 170.6 to peremptorily challenge Judge Thompson. Thereafter, the Court of
Appeal issued an order to show cause on that claim for relief and appointed
counsel for Maas.
The Court of Appeal construed Maas‟s claim regarding section 170.6 as
one seeking a writ of mandate directing the superior court to vacate the summary
denial of his petition for writ of habeas corpus and to reassign the petition to a
judge other than Judge Thompson (see § 170.3, subd. (d)), and ordered that a writ
of mandate issue. The Court of Appeal held that when a petitioner collaterally
attacks his criminal convictions and sentences by filing a petition for writ of
habeas corpus in the superior court, and the petition is assigned to a judge other
than the original trial judge, the petitioner may assert a section 170.6 peremptory
challenge to the judge assigned to rule on the habeas corpus petition.
We granted review on our own motion, directing the parties to address
whether section 170.6 permits a peremptory challenge to be asserted in a habeas
corpus proceeding before an order to show cause has been issued, against a judge
who has been assigned to assess a petition for writ of habeas corpus. Maas was
designated the petitioning party.

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 II. DISCUSSION
The question presented in the case involves an interplay between a
litigant‟s right to disqualify a superior court judge for prejudice under section
170.6, and the procedures governing a petitioner‟s challenge to his or her criminal
conviction or sentence by way of a petition for writ of habeas corpus. We begin
with a brief overview of the relevant features of the two schemes, and then
proceed to decide the proper application of section 170.6 under the circumstances
presented by this case.

A. Disqualification of a superior court judge under section 170.6
Section 170.6 provides that “a judge, court commissioner, or referee of a
superior court of the State of California shall not try a 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 is established as provided in this
section that the judge or court commissioner is prejudiced against a party or
attorney or the interest of a party or attorney appearing in the action or
proceeding.” (§ 170.6, subd. (a)(1).) Prejudice is established, for purposes of
section 170.6, by a motion supported by an “affidavit or declaration under penalty
of perjury, or an oral statement under oath” that the assigned judge “is prejudiced
against a party or attorney . . . so that the party or attorney cannot, or believes that
he or she cannot, have a fair and impartial trial or hearing before the judge . . . .”
(§ 170.6, subd. (a)(2).) So long as the “motion is duly presented, and the affidavit
or declaration under penalty of perjury is duly filed or an oral statement under oath
is duly made, thereupon and without any further act or proof,” a different judge
must be assigned to try the cause or hear the matter. (§ 170.6, subd. (a)(4).)
When a litigant has met the requirements of section 170.6, disqualification
of the judge is mandatory, without any requirement of proof of facts showing that

5
the judge is actually prejudiced. (McCartney v. Commission on Judicial
Qualifications (1974) 12 Cal.3d 512, 531; Loftin v. Superior Court (1971)
19 Cal.App.3d 577, 579 [the statute‟s provisions “give a litigant one chance to get
rid of an unwanted judge, whom he cannot successfully challenge [for cause]
under [former] section 170”].) This court has characterized the Legislature‟s
enactment of section 170.6 as having bestowed upon litigants “an extraordinary
right” to peremptorily challenge a judge. (McCartney, at p. 531.) “The right is
„automatic‟ in the sense that a good faith belief in prejudice is alone sufficient” for
disqualification. (Ibid.; see Solberg v. Superior Court (1977) 19 Cal.3d 182, 193.)
Permitting a party‟s belief that the judge is prejudiced to justify disqualification
was intended to “preserve public confidence in the impartiality of the courts.”
(Solberg, at p. 193; International Union of Operating Engineers v. Superior Court
(1989) 207 Cal.App.3d 340, 349 [the purpose of § 170.6 is “ „to promote fair and
impartial trials‟ ”].) “[S]ection 170.6 is to be liberally construed in favor of
allowing a peremptory challenge, and a challenge should be denied only if the
statute absolutely forbids it.” (Stephens v. Superior Court (2002) 96 Cal.App.4th
54, 61-62; accord, International Union of Operating Engineers, at p. 349.)
When considering the enactment of section 170.6, the Legislature was well
aware of the potential that its provisions “may be abused by parties seeking to
delay trial or to obtain a favorable judge.” (Johnson v. Superior Court (1958)
50 Cal.2d 693, 697; accord, The Home Ins. Co. v. Superior Court (2005)
34 Cal.4th 1025, 1032.) Accordingly, the statute restricts both the number and the
timing of a peremptory challenge against a judge. (See § 170.6, subd. (a)(2), (4);
Solberg v. Superior Court, supra, 19 Cal.3d at pp. 196-197.) For example, unless

6
certain, more specific timeliness rules apply, a disqualification motion cannot be
presented after commencement of the trial or hearing. (§ 170.6, subd. (a)(2).)2

B. Habeas corpus proceedings
This court has explained that the petition for writ of habeas corpus has only
a “limited function” in a habeas corpus proceeding. (In re Lawler (1979)
23 Cal.3d 190, 194.) A petitioner seeking to collaterally attack by writ of habeas
corpus the conviction or sentence on which his or her confinement is based begins
by filing a verified petition stating that he or she is unlawfully restrained, naming
the person by whom the petitioner is so restrained, and setting forth the facts on
which the petitioner claims that the restraint is unlawful. (Ibid.; see Pen. Code,
§ 1474.)
“When presented with a petition for a writ of habeas corpus, a court must
first determine whether the petition states a prima facie case for relief — that is,

2 Section 170.6, subdivision (a)(2), states in relevant part: “If the judge, other
than a judge assigned to the case for all purposes, court commissioner, or referee
assigned to, or who is scheduled to try, the cause or hear the matter is known at
least 10 days before the date set for trial or hearing, the motion shall be made at
least 5 days before that date. If directed to the trial of a cause with a master
calendar, the motion shall be made to the judge supervising the master calendar
not later than the time the cause is assigned for trial. If directed to the trial of a
criminal cause that has been assigned to a judge for all purposes, the motion shall
be made to the assigned judge or to the presiding judge by a party 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. . . . In no event shall a judge,
court commissioner, or referee entertain the motion if it is made after the drawing
of the name of the first juror, or if there is no jury, after the making of an opening
statement by counsel for plaintiff, or if there is no opening statement by counsel
for plaintiff, then after swearing in the first witness or the giving of any evidence
or after trial of the cause has otherwise commenced. 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.”

7
whether it states facts that, if true, entitle the petitioner to relief — and also
whether the stated claims are for any reason procedurally barred.” (People v.
Romero (1994) 8 Cal.4th 728, 737 (Romero); accord, In re Clark (1993) 5 Cal.4th
750, 769, fn. 9.) In conducting its evaluation of the petition, the court asks
“whether, assuming the petition‟s factual allegations are true, the petitioner would
be entitled to relief.” (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) “To
assist the court in determining the petition‟s sufficiency, the court may request an
informal response from the petitioner‟s custodian or the real party in interest.”
(Romero, supra, at p. 737; see Cal. Rules of Court, rule 4.551(b).)
If the court determines that the petition states a prima facie case for relief
on a claim that is not procedurally defective, the court issues the writ of habeas
corpus, or an order to show cause. (Pen. Code, § 1477; In re Lawler, supra,
23 Cal.3d at p. 194; In re Hochberg (1970) 2 Cal.3d 870, 873-874, fn. 2.) The
issuance of the writ of habeas corpus or order to show cause does not grant the
requested relief. Rather, it requires the petitioner‟s custodian to submit the
“ „principal pleading‟ ” in the habeas corpus proceeding, that is, a written return
responding to the grounds for relief alleged in the petition and justifying the
restraint on the petitioner‟s liberty. (Romero, supra, 8 Cal.4th at pp. 738-739.)
We have observed in this regard that, “[a]s a practical matter, the issuance of the
order to show cause creates a „cause‟ giving the People a right to reply to the
petition by a return and to otherwise participate in the court‟s decisionmaking
process.” (In re Serrano (1995) 10 Cal.4th 447, 455.) In these circumstances, the
petition serves the purpose of “launch[ing] the judicial inquiry into the legality” of
the petitioner‟s restraint by securing the issuance of the writ of habeas corpus or
order to show cause. (Romero, supra, at p. 738 [“ „when the writ is issued, the
petition has accomplished its purpose‟ ”].)

8
 If, on the other hand, the court determines that the petition fails to state a
prima facie case for relief or that the claims are procedurally barred, the petition
will be summarily denied, that is, it will be denied without issuance of an order to
show cause. (Romero, supra, 8 Cal.4th at p. 737; In re Clark, supra, 5 Cal.4th at
p. 769, fn. 9.) Whereas the court issuing an order to show cause makes “ „an
implicit preliminary determination‟ ” as to claims within the order that the
petitioner has made a prima facie case for relief, the court also makes “ „an
implicit determination‟ as to claims outside the order” that the petitioner has
“ „failed to make a prima facie case.‟ ” (In re Sassounian (1995) 9 Cal.4th 535,
547, second italics added.) As recounted above, Judge Thompson summarily
denied Maas‟s habeas corpus petition after concluding that all of his claims were
procedurally defective.

C. Does section 170.6 permit disqualification of the judge assigned to
examine and rule on a petition for writ of habeas corpus?
As previously mentioned, section 170.6 provides that a “judge, court
commissioner, or referee of a superior court of the State of California shall not try
a 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” (§ 170.6, subd.
(a)(1)), when a litigant has met the statute‟s procedural requirements by timely
filing an affidavit under penalty of perjury stating his or her belief that the judge is
prejudiced. Section 170.6 does not define “civil or criminal action” or “special
proceeding,” but these two classes of judicial remedies (§ 20) are defined in other
provisions in the Code of Civil Procedure. An “action,” which can be either civil
or criminal (§ 24), is an ordinary court proceeding by which one party prosecutes
another to protect a right, to prevent a wrong, or to punish for a criminal offense.
(§ 22.) All other judicial remedies that are not actions are “special proceeding[s].”
(§ 23.)

9
 A habeas corpus proceeding is not a criminal action. Rather, as relevant
here, it is an independent, collateral challenge to an earlier, completed criminal
prosecution. (In re Scott (2003) 29 Cal.4th 783, 815.) Therefore, if a habeas
corpus proceeding falls within the purview of section 170.6, it is because it is a
“special proceeding.”
This court‟s decisions have long characterized a habeas corpus proceeding
as a special proceeding. (People v. Villa (2009) 45 Cal.4th 1063, 1069; In re
Scott, supra, 29 Cal.4th at p. 815, fn. 6.) Although not dispositive, the Legislature
likewise has labeled the habeas corpus proceeding a “Special Proceeding[] of a
Criminal Nature.” (See Pen. Code, pt. 2, tit. 12, § et seq. [setting out the grounds
for and procedures governing the writ of habeas corpus].)
We conclude that a habeas corpus proceeding is a “special proceeding”
within the meaning of section 170.6. Accordingly, a habeas corpus petitioner who
files a motion for disqualification in proper form and in compliance with the
procedural requirements of section 170.6 has a right to disqualify the judge
assigned to try, or hear any matter within, that habeas corpus proceeding. Whether
a peremptory challenge under section 170.6 is available when the petitioner has
simply filed a petition for writ of habeas corpus in the superior court thus appears
to depend on whether the petition seeking a writ of habeas corpus or an order to
show cause is part of the habeas corpus proceeding, or merely a precursor to it.
Some decisions by this court seem to suggest that a habeas corpus matter is
properly characterized as a special proceeding only after issuance of a writ of
habeas corpus or an order to show cause. As explained in In re Hochberg, supra,
2 Cal.3d 870, “[w]hen we order the respondent to show cause before the superior
court why the relief prayed for in a petition for writ of habeas corpus should not be
granted, we do more than simply transfer the petition to that court and more than
simply afford the petitioner an opportunity to present evidence in support of the

10
allegations of the petition; we institute a proceeding in which issues of fact are to
be framed and decided.” (Id. at p. 875, fn. 4; see Romero, supra, 8 Cal.4th at p.
740 [characterizing the issuance of a writ of habeas corpus or order to cause as
“the means by which a judicial proceeding is instituted”]; cf. People v. Gonzalez
(1990) 51 Cal.3d 1179, 1258 [holding that the “bare filing” of a petition for writ of
habeas corpus does not trigger a right to discovery because a habeas corpus
petition that fails to state a prima facie case for relief creates no cause or
proceeding that would confer discovery jurisdiction].)
Other language in our cases, however, strongly suggests that the petition is
part of the habeas corpus proceeding. For example, when summarizing the
procedures governing the writ of habeas corpus, this court in People v. Romero,
supra, 8 Cal.4th 728, observed that “[a] habeas corpus proceeding begins with the
filing of a verified petition for a writ of habeas corpus.” (Id. at p. 737, italics
added.) Likewise, in In re Sassounian, supra, 9 Cal.4th 535, this court observed
that “[i]n a proceeding in habeas corpus, the petitioner bears the „burden . . . of
alleging . . . the facts on which he relies in support of his claim [or claims] for
relief . . . .‟ ” (Id. at p. 546, italics added.)
Giving section 170.6 a liberal construction in order to promote the statute‟s
objectives (Stephens v. Superior Court, supra, 96 Cal.App.4th at pp. 61-62), we
conclude that a petition for writ of habeas corpus is a part of, rather than a mere
precursor to, a “special proceeding” within the meaning of section 170.6. The
question remains, however, whether it can be said that a judge tries a special
proceeding, or hears a matter involving “a contested issue of law or fact” in that
special proceeding (§ 170.6, subd. (a)(1)), when assessing whether the claims in a
habeas corpus petition state a prima facie case for relief, and whether those claims
are subject to one or more procedural bars.

11
 The Attorney General argues that the mere filing of a habeas corpus
petition is neither the trial of a special proceeding, nor a hearing involving a
contested issue of law or fact, within the meaning of section 170.6 because only
the issuance of a writ of habeas corpus or order to show cause “ „institute[s]
a proceeding in which issues of fact are to be framed and decided.‟ ” (Romero,
supra, 8 Cal.4th at p. 740.)
The Attorney General‟s position that only the issuance of a writ of habeas
corpus or order to show cause triggers application of section 170.6 presupposes
that the statutory language directing a properly disqualified judge neither to “try a
. . . special proceeding,” nor “hear any matter therein that involves a contested
issue of law or fact” (italics added) contemplates a pending trial or hearing. Such
an interpretation arguably is supported by language in other provisions of section
170.6. For example, subdivision (a)(2) provides that the motion to disqualify must
be supported by a sworn statement indicating the litigant‟s belief “that he or she
cannot . . . have a fair and impartial trial or hearing before the judge.” The same
subdivision likewise indicates that if the motion under section 170.6 “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.” (§ 170.6, subd. (a)(2).)
We agree with Maas, however, that the statutory terms “try” and “hear” do
not apply exclusively to trials and hearings. As Maas points out, to try also means
to “examine judicially” (Black‟s Law Dict. (7th ed. 1999) p. 1520), and the word
“try” is often used interchangeably with the term “to decide.” (Compare Code
Civ. Proc., § 591 [“[a]n issue of law must be tried by the court”] with Evid. Code,
§ 310, subd. (a) [questions of law “are to be decided by the court”].) Similarly, in
Lewis v. Superior Court (1999) 19 Cal.4th 1232, this court observed that the term
“heard” in Code of Civil Procedure section 1088, the statute authorizing issuance
of a peremptory writ in the first instance, does not contemplate the requirement

12
that the court conduct an oral hearing, only that the court consider and evaluate the
petition before granting relief. (Lewis, at pp. 1250-1251.)
And although the Attorney General correctly observes that the initial
consideration of, and ruling on, a petition for writ of habeas corpus does not
involve resolution of a contested issue of fact, we are persuaded by Maas‟s
argument that a judge who decides whether a petition for writ of habeas corpus has
stated a prima facie case for relief hears and resolves a contested issue of law,
within the meaning of section 170.6, subdivision (a)(1), because the judge is called
upon to decide questions of law presented by the petition. When a judge
summarily denies a habeas corpus petition for failure to state a prima facie case for
relief, even in the absence of an informal response by the People, the judge has
resolved a contested issue of law against the petitioner, that is, the judge has
decided that the factual allegations set forth in the petition, even assuming they are
true, do not entitle the petitioner to relief. Indeed, this court has observed that the
summary denial of a petition for writ of habeas corpus “does not mean that the
court has not considered the merits of the claims.” (In re Clark, supra, 5 Cal.4th
at p. 769, fn. 9.)
Analogizing a judge‟s ruling on a habeas corpus petition to a ruling on a
motion for summary judgment, the Attorney General further asserts that in
deciding whether a petition for writ of habeas corpus states a prima facie case for
relief, “the judge does not pass upon or determine issues of fact but rather decides
whether a triable issue of fact exists.” (Bambula v. Superior Court (1985)
174 Cal.App.3d 653, 657 [referring to motions for summary judgment].) In the
Attorney General‟s view, because the judge must accept the allegations of the
habeas corpus petition as true, there is no more a contested issue of law or fact
than in the case of a demurrer.

13
 The Attorney General‟s argument referencing summary judgment and
demurrers draws on decisions addressing section 170.6, subdivision (a)(2), which,
as previously mentioned, sets forth the statute‟s detailed timeliness requirements.
As a general rule, a motion for disqualification under section 170.6 is allowed any
time before the commencement of the trial or hearing. And, as the Attorney
General points out, courts interpreting this provision have concluded that initial
rulings by a judge on a variety of pretrial matters “not involving a determination of
contested fact issues relating to the merits” (§ 170.6, subd. (a)(2)), such as
demurrers, motions for summary judgment, and motions to dismiss under Penal
Code section 995, do not foreclose a party from bringing a subsequent motion to
disqualify the judge for prejudice. (See, e.g., Fight for the Rams v. Superior Court
(1996) 41 Cal.App.4th 953, 958 [plaintiffs‟ failure to challenge the assigned judge
before the hearing and rulings on the demurrer and other defense motions did not
preclude them from making a post-hearing motion to disqualify].) The various
decisions cited by the Attorney General hold only that a party is permitted to move
for disqualification under section 170.6 subsequent to certain pretrial hearings,
however. None stand for the proposition that a party is precluded from moving to
disqualify the assigned judge prior to that pretrial hearing, and our own research
discloses no decision stating such a rule. The Attorney General‟s argument in this
regard therefore appears to be largely beside the point.
The Court of Appeal‟s decision in the present matter was the first to hold
that, subject to the procedural requirements set forth in section 170.6 and other
limitations established in the case law, a petitioner seeking a writ of habeas corpus
in the superior court may peremptorily challenge the judge assigned to examine
and rule on the petition. As previously discussed, section 170.6 requires that
disqualification motions be raised no later than commencement of the trial or
hearing (§ 170.6, subd. (a)(2)), and limits each side to only one disqualification

14
motion “in any one action or special proceeding.” (§ 170.6, subd. (a)(4).) Case
law has long established a further limitation, however. In some situations, that is,
when 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. (McClenny v. Superior
Court (1964) 60 Cal.2d 677, 684, italics omitted.) When the second action or
proceeding that is considered to be a continuation of the earlier action or
proceeding is assigned to the same trial judge who presided over the earlier action,
the litigants are not permitted to exercise a peremptory challenge against that
judge: Such a motion is untimely, because it was not made before commencement
of the earlier trial. The reason for this further limitation on the right to
peremptorily challenge a judge under section 170.6 is to prevent a litigant from
disqualifying the judge most familiar with the facts of the case in the hopes of
obtaining a more favorable result. (Jacobs v. Superior Court (1959) 53 Cal.2d
187, 191.)
In Yokley v. Superior Court (1980) 108 Cal.App.3d 622 (Yokley), the Court
of Appeal held that, for purposes of section 170.6, the order to show cause in a
habeas corpus proceeding that was made returnable before the trial court to hear
petitioner‟s challenges to his criminal conviction was a continuation of that earlier
action. (Yokley, at pp. 626, 628.) The Court of Appeal also expressed the view,
however, that a habeas corpus petitioner may exercise a section 170.6 challenge to
the judge assigned to conduct the hearing on the order to show cause, provided
that the judge was not the same judge who had presided over the petitioner‟s
earlier criminal trial. (Yokley, at p. 627.)
As explained below, we believe the rule in Yokley is sound and conclude
that it applies in the setting presented here, in which a petitioner seeks to

15
disqualify the judge assigned to decide whether the petitioner‟s habeas corpus
petition states a prima facie case for relief.
The petitioner in Yokley had filed a petition for writ of habeas corpus in the
Court of Appeal, raising several claims challenging his plea of guilty. The Court
of Appeal issued an order to show cause made returnable to the superior court, and
the judge who presided over the petitioner‟s criminal trial was assigned to conduct
the order to show cause hearing. After unsuccessfully moving to disqualify the
judge for cause, the petitioner filed a motion to disqualify him under section 170.6.
The judge denied the motion as untimely. (Yokley, supra, 108 Cal.App.3d at
p. 624.) The Court of Appeal agreed, concluding that the factual issues to be
resolved in the habeas corpus proceeding “involve[d] matters necessarily relevant
and material to the issues involved in the original action, and thus constitute a
continuation of the original action.” (Yokley, at p. 628.) Because Yokley had
failed to bring his section 170.6 challenge prior to the start of the original action,
his disqualification motion was untimely. (Yokley, at p. 624.)
In upholding the trial court‟s denial of Yokley‟s section 170.6 motion, the
Court of Appeal reasoned that, like a proceeding for contempt or for revocation of
probation, which are considered a continuation of the earlier action, an order to
show cause in a habeas corpus matter challenging a criminal conviction or
sentence involves “ „ “substantially the same issues” ‟ ” as the original criminal
case and therefore should be considered a continuation of that action. (Yokley,
supra, 108 Cal.App.3d at p. 626.) The Court of Appeal also found its remand
order in that case analogous to an appellate court‟s remand to the superior court
for resolution of other issues, such as the voluntariness of a confession, for which
a section 170.6 motion to disqualify is not available. (Yokley, at p. 627.)
The Court of Appeal further observed, however, that were the proceedings
on remand to be assigned to a judge who had not previously participated in the

16
underlying criminal action, the habeas corpus petitioner would be entitled to
disqualify the assigned judge for prejudice. (Yokley, supra, 108 Cal.App.3d at
p. 627.) To support this proposition, the Court of Appeal cited People v. Smith
(1961) 196 Cal.App.2d 854 (Smith), which held that the defendant could bring a
section 170.6 challenge against a judge assigned to conduct his probation
revocation hearing when that judge had had no prior connection to his criminal
case, so long as the section 170.6 motion was made before commencement of the
hearing in the probation revocation proceedings. In deciding whether the exercise
of a peremptory challenge under section 170.6 was permitted in that situation, the
appellate court in Smith observed that it was “not dealing with the [number or
timeliness] limitations imposed by the Legislature to prevent an abuse of the
section but with the basic objective of the section itself.” (Smith, supra, at p. 859.)
The same reasoning is applicable here. When the judge assigned to
examine and rule on the habeas corpus petition is the same judge who presided at
the petitioner‟s criminal trial, “there is no judge better suited for making a
determination of the issues raised in [the] petitioner‟s petition” (Yokley, supra,
108 Cal.App.3d at p. 628), and the petitioner is not permitted at that point to
mount a peremptory challenge under section 170.6. However, when the assigned
judge had no involvement in the petitioner‟s criminal action, denying the
petitioner the right to peremptorily challenge a judge he or she believes is
prejudiced would be contrary to the intent and purpose of section 170.6. (See
Smith, supra, 196 Cal.App.2d at p. 860.)
The Attorney General argues that we need not decide in this case whether
the rule in Yokley is sound because Yokley concerned a habeas corpus proceeding
in which an order to show cause had issued. The present matter is distinguishable,
the Attorney General argues, because here no “cause” arose and therefore there
was no “contested issue of law or fact” triggering the right to disqualify a judge

17
for prejudice under section 170.6. As we previously explained, however, a
petition for writ of habeas corpus is part of a special proceeding within the
meaning of section 170.6, and a judge assessing the petition to determine whether
it states a prima facie case for relief hears a matter involving “a contested issue of
law or fact” in that special proceeding, and may be disqualified from doing so.
The Attorney General argues furthermore that various policy considerations
militate against allowing a section 170.6 peremptory challenge before an order to
show cause has issued. Although such considerations are not without some force,
we are not persuaded that to allow a peremptory challenge at the petition stage of a
habeas corpus proceeding would lead to impractical or unworkable results
rendering such a construction unreasonable. (See Copley Press, Inc. v. Superior
Court (2006) 39 Cal.4th 1272, 1291-1292.)
The Attorney General first asserts that permitting a petitioner to
peremptorily challenge the judge assigned to rule on his or her habeas corpus
petition would interfere with the expeditious initial review of habeas corpus
petitions that quickly culls out those lacking in merit from those that state a prima
facie case for relief. Under the California Rules of Court, as a general matter, the
superior court must rule on a petition for writ of habeas corpus within 90 days of
when it is filed. (Cal. Rules of Court, rule 4.551(a)(3).) We agree that responding
to a petitioner‟s request for the name of the judge assigned to examine his or her
habeas corpus petition, and allowing a reasonable amount of time for receipt of
any resulting motion under section 170.6, will impact a court‟s ability to adhere to
those timelines. However, the California Rules of Court also provide that the
court, for good cause, may issue an order extending the time for ruling on the
petition. (Cal. Rules of Court, rule 4.551(h).) More importantly, as Maas
correctly observes, the timelines for ruling on petitions for writ of habeas corpus
are intended, not for the purpose of judicial economy, but rather to afford prompt

18
relief to petitioners who present meritorious claims. (See Pen. Code, § 1476
[providing that a superior court must issue the writ “without delay”].) A petitioner
who asks for the name of the judge assigned to examine his or her habeas corpus
petition and then chooses to pursue a peremptory challenge against a judge the
petitioner believes to be biased may properly be considered to have accepted any
resulting delay in the examination and ruling on the petition.
The Attorney General next argues that allowing a peremptory challenge
before issuance of an order to show cause wastes judicial resources. The Attorney
General warns that a superior court presented with a disqualification motion under
section 170.6 would be unduly burdened by having to determine the identity of the
trial judge in the underlying criminal action, a determination that is further
complicated if there were more than one judge who participated in that action. As
the Attorney General correctly points out, this information is necessary to
determine whether a motion under section 170.6 is available to the petitioner.
(See Yokley, supra, 108 Cal.App.3d at p. 628.) However, nothing prevents a
superior court from informing petitioners regarding the unavailability of a section
170.6 motion in these circumstances, before the petitioner has filed such a motion.
For example, when responding to a petitioner‟s request for the identification of the
judge assigned to rule on his or her habeas corpus petition, the superior court
could include with that information a citation to our decision in this matter. Or the
court could advise the petitioner more specifically that a motion under section
170.6 is available only when the assigned judge did not participate in the
petitioner‟s underlying criminal trial.
The Attorney General contends finally that allowing a peremptory
challenge to the judge assigned to assess a petition for writ of habeas corpus is
detrimental to petitioners because it would require them to raise such a challenge
at that point in the habeas corpus proceedings or otherwise forfeit their right to do

19
so. The Attorney General‟s assertion is contrary to the decisions (previously cited
by the Attorney General) that hold a party is not foreclosed from moving under
section 170.6 to disqualify a judge who had presided at an earlier hearing in the
same action when that hearing did “not involve[e] a determination of contested
fact issues relating to the merits.” (§ 170.6, subd. (a)(2).) As previously
explained, the judge deciding whether any of the petitioner‟s habeas corpus claims
states a prima facie case for relief accepts the petitioner‟s factual allegations as
true. (People v. Duvall, supra, 9 Cal.4th at pp. 474-475.) Because the judge‟s
evaluation of a habeas corpus petition does not require the “determination of
contested fact issues,” a petitioner who did not peremptorily challenge that judge
is not foreclosed from invoking section 170.6 to disqualify the judge assigned to
the habeas corpus proceeding after an order to show cause has issued, provided all
of the requirements for doing so have been satisfied.
In sum, and consistently with the objectives of section 170.6, we conclude
that a petitioner who asks to be informed of the identity of the judge assigned to
examine his or her habeas corpus petition prior to the judge‟s ruling on the petition
is entitled to notice of that assignment. The petitioner is further entitled to
peremptorily challenge the assigned judge under section 170.6, so long as all of
the procedural requirements of that provision have been satisfied, including the
requirement that the assigned judge not have participated in petitioner‟s
underlying criminal action. In this case, Maas wrote to the superior court within
one week of filing his petition for writ of habeas corpus, asking for the name of
the judge assigned to his petition. The clerk of the court, however, never notified
him that the assigned judge was Judge Thompson. Maas should have been
provided with that information when it was available, and should have been given
the opportunity to file a section 170.6 motion to disqualify Judge Thompson based
on his belief that Judge Thompson was prejudiced. The Attorney General does not

20
dispute that Judge Thompson had no involvement in Maas‟s underlying criminal
action. Therefore, were Maas to have been given the opportunity to file his
motion in proper form before Judge Thompson had examined and ruled on his
habeas corpus petition, Maas would have been entitled to disqualify him under
section 170.6.3 Accordingly, the Court of Appeal correctly ordered that a writ of
mandate issue directing the superior court to vacate the summary denial of Maas‟s
petition for writ of habeas corpus and to reassign his petition for decision by a
judge other than Judge Thompson.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.

3 Because Maas promptly requested notice of the identity of the judge
assigned to examine and rule on his habeas corpus petition, but was denied the
opportunity to file a section 170.6 motion in the superior court, we have no
occasion to address in this case questions regarding the timeliness of a request for
such information or the resulting motion to disqualify.

21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Maas v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 232 Cal.App.4th 169
Rehearing Granted

__________________________________________________________________________________

Opinion No. S225109
Date Filed: November 7, 2016
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: John M. Thompson

__________________________________________________________________________________

Counsel:

Russell S. Babcock, under appointment by the Supreme Court, for Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Edward C. DuMont, State Solicitor General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State
Solicitor General, Lise S. Jacobson, Peter Quon, Jr., and Susan E. Miller, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Russell S. Babcock
Law Offices of Russell S. Babcock
1901 First Avenue, Suite 138
San Diego, CA 92101
(619) 531-0887

Steven T. Oetting
Deputy State Solicitor General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2206