People v. Braley
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The Court of Appeal reversed and remanded the trial court's order denying a petition for recall and resentencing on a prior serious or violent felony and to be considered for elderly parole.
The court held that the trial judge, having granted the motion to disqualify himself in 2006 from the underlying case, is disqualified from considering this subsequent petition under Code of Civil Procedure section 170.6. In this case, defendant asks to have his five-year terms stricken or dismissed in the interests of justice, and whether to strike or dismiss the enhancement is bound to involve a contested issue of law or fact. Furthermore, what happened at defendant's trial will necessarily inform whether he should be considered for elderly parole. Therefore, because the issues defendant raised in his petition were a continuation of the underlying action from which the judge was disqualified, the judge was also disqualified from ruling on the petition. To the extent the judge's summary denial of defendant's petition on procedural grounds can be likened to a summary denial of a petition for writ of habeas corpus on procedural grounds, Maas v. Superior Court, supra, 1 Cal.5th 962, supports a conclusion that he was disqualified from ruling on the petition.
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