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Bontilao v. Superior Court (Board of Parole Hearings)

California Court of Appeals, Sixth District

July 24, 2019

ARPRUBERTITO P. BONTILAO, Petitioner,
v.
THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent BOARD OF PAROLE HEARINGS, Real Party in Interest.

          Santa Clara County Super. No. 206077 Honorable Vanessa A. Zecher

          Counsel for petitioner: Jonathan Grossman, under appointment by the Court of Appeal

          Counsel for real party in interest: Xavier Becerra, Attorney General Phillip J. Lindsay, Senior Assistant Attorney General Sara J. Romano, Supervising Deputy Attorney General Jennifer G. Ross, Deputy Attorney General

          DANNER, J.

         In this case we consider the timeliness of a motion to disqualify a judge pursuant to Code of Civil Procedure section 170.6[1] filed in connection with a petition for a writ of habeas corpus. Petitioner Arprubertito Bontilao brought a petition for a writ of habeas corpus in the superior court challenging a decision by the Board of Parole Hearings (the Board) denying him parole. Pursuant to Maas v. Superior Court (2016) 1 Cal.5th 962 (Maas), Bontilao requested that the superior court inform him of the identity of the judge assigned to consider his petition. The superior court issued an order naming a judge assigned “for all purposes” to Bontilao's habeas petition. Twenty-four days later Bontilao brought a challenge under section 170.6 to the judge named in the order. The superior court struck Bontilao's challenge as untimely.

         Bontilao brought a petition for writ of mandate in this court challenging the superior court's order striking his section 170.6 challenge. For the reasons explained below, we conclude that the superior court's order naming the judge assigned to Bontilao's petition constituted an all purpose assignment within the meaning of section 170.6, subdivision (a)(2). As Bontilao's section 170.6 challenge was not timely filed under the statute's all purpose assignment rule, we deny Bontilao's petition for a writ of mandate.

         I. Facts and procedural background

         In 1999, Bontilao was convicted of second degree murder and sentenced by Judge Ball of the Santa Clara County Superior Court to 15 years to life in prison. This court affirmed his conviction on direct appeal and simultaneously denied a petition for a writ of habeas corpus he filed with this court. (People v. Bontilao (Nov. 3, 2000, H020362) [nonpub. opn.]; In re Arprubertito Bontilao (Nov. 3, 2000, H021875) [nonpub. opn.].)

         In April 2018, Bontilao filed a petition for writ of habeas corpus in Santa Clara County Superior Court challenging a 2017 decision by the Board denying him parole. On May 4, 2018, Bontilao sent a letter brief to the superior court pursuant to Maas, supra, 1 Cal.5th 962, requesting the identity of the judge assigned to adjudicate his habeas petition. On May 17, 2018, the superior court issued an order notifying Bontilao that the petition had been assigned to Judge Weinstein “for all purposes.”

         On June 29, 2018, the superior court filed a second order notifying Bontilao that Judge Weinstein was unavailable, and the matter was “reassigned to the Honorable Vanessa A. Zecher (the undersigned) for all purposes.” The order's proof of service indicated that it was mailed to Bontilao on June 29, 2018, the same day it was filed. In light of the judicial reassignment, the court order also extended the time for the superior court to issue its order on Bontilao's petition.

         Bontilao received the superior court's June 29, 2018 order on July 3, 2018. On July 23, 2018, Bontilao served a challenge against Judge Zecher pursuant to Code of Civil Procedure section 170.6. Bontilao's challenge was dated July 20, 2018, and he delivered it to prison officials for mailing on July 23, 2018. On August 16, 2018, Judge Zecher issued an order striking the challenge as untimely under the all purpose assignment rule.

         On August 31, 2018, Bontilao filed a petition for writ of mandate in this court, which this court summarily denied. Bontilao filed a petition for review in the California Supreme Court. The Supreme Court granted the petition and transferred the matter back to this court with directions to vacate our previous order and to issue an order directing respondent superior court to show cause why the relief sought in the petition should not be granted.

         We issued an order to show cause, appointed counsel for Bontilao, provided the Board the opportunity to file a return in opposition to the writ, and gave Bontilao the opportunity to file a reply to the return.

         Counsel for Bontilao filed an application for leave to file a supplemental petition for writ of mandate and included several supporting declarations and arguments. This court granted in part and denied in part Bontilao's application. We ordered the supplemental petition and supporting exhibits to be considered as supplemental points and authorities in support of the petition, and we directed the clerk of this court to file the supplemental points and authorities and to lodge the supporting exhibits. We also provided the Board the opportunity to file a response and Bontilao the opportunity to file a reply to the response. We received responsive briefing from both the Board and Bontilao.

         ii. discussion

         Bontilao's petition for a writ of mandate challenges the superior court's order striking his motion to disqualify Judge Zecher pursuant to section 170.6. Courts of Appeal reviewing section 170.6 orders frequently describe the appellate standard of review for such orders as abuse of discretion. (See, e.g., Entente Design, Inc. v. Superior Court (2013) 214 Cal.App.4th 385, 389.) However, trial courts have no discretion to deny a section 170.6 motion filed in compliance with the statute's procedures. (Maas, supra, 1 Cal.5th at p. 972.) Because the trial court exercises no discretion when considering a section 170.6 motion, it is “appropriate to review a decision granting or denying a peremptory challenge under section 170.6 as an error of law. Therefore we review under the nondeferential de novo standard.” (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363.)

         A. General Principles of Section 170.6

         Section 170.6, subdivision (a)(1), sets out the statute's general principle: “A judge... 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.” The provision “ ‘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.' ” (Maas, supra, 1 Cal.5th at p. 973.) Because the right to disqualify a judge under section 170.6 is “automatic, ” in that a litigant need not show actual prejudice by the challenged judge (Solberg v. Superior Court (1977) 19 Cal.3d 182, 193 (Solberg)), “the statute restricts both the number and the timing of a peremptory challenge against a judge.” (Maas, at p. 973.)

         B. Section 170.6 and Habeas Corpus Proceedings

         In Maas, supra, 1 Cal.5th 962, the California Supreme Court addressed the application of section 170.6 to a request by habeas petitioner Maas that the superior court provide him the identity of the judge assigned to his habeas petition. (Maas, at p. 970.) Maas requested the identity of the judge approximately one week after he first filed his petition for writ of habeas corpus. (Id. at p. 971.) The superior court summarily denied Maas's petition without informing him of the identity of the judge to whom his petition had been assigned. (Ibid.) Maas filed a second habeas petition, raising similar claims and also complaining that the superior court had failed to notify him of the judge assigned to his first petition. (Ibid.) In connection with the second petition, Maas filed a declaration stating that he would have moved to disqualify the assigned judge under section 170.6 had Maas been informed of the judge's identity before the superior court summarily denied his petition. (Maas, at p. 971.)

         Section 170.6 does not explicitly reference habeas corpus proceedings. In assessing Maas's claim that the superior court erred under section 170.6 in its treatment of Maas's habeas corpus petition, the California Supreme Court examined the language of the statute and case law interpreting both section 170.6 and habeas corpus proceedings under California law.

         The Supreme Court concluded that the superior court erred. “[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.” (Maas, supra, 1 Cal.5th at pp. 982-983.)

         In reaching this conclusion, the California Supreme Court made several determinations relevant to our consideration of Bontilao's petition. The court concluded that “a habeas corpus proceeding is a ‘special proceeding' within the meaning of section 170.6.” (Maas, supra, 1 Cal.5th at p. 975.) It noted that “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.)” (Ibid.)

         The Supreme Court in Maas rejected the Attorney General's contention that merely filing a habeas corpus petition (without the subsequent issuance of an order to show cause) does not constitute a “proceeding” under section 170.6. (Maas, supra, 1 Cal.5th at pp. 976-977.) The court equally did not embrace the Attorney General's argument that references in section 170.6, subdivision (a)(1), to a judge “try[ing]” a special proceeding or “hear[ing]” a matter necessarily contemplate a pending trial or hearing in order for a section 170.6 challenge to be made. (Maas, at p. 977.)

         The court reasoned “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.” (Maas, supra, 1 Cal.5th at p. 977.) The court agreed with Maas that the language in section 170.6, subdivision (a)(1), cited by the Attorney General could be read as “ ‘examine judicially' ” or “ ‘to decide.' ” (Maas, at p. 977.) Therefore, Maas had the right ...


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