Estrada v. Super. Ct.
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Petitioner filed a petition for writ of mandate challenging the trial court’s denial of her peremptory challenge. The Second Appellate District denied the petition for failure to demonstrate a prima facie case entitling her to extraordinary relief. After Petitioner filed a petition to review, our Supreme Court stayed all further proceedings pending its review. The court ultimately granted the petition and transferred the matter back to the court with directions to vacate its order denying the petition for writ of mandate and issuing an order to show cause. Petitioner contends that the trial court erred in denying the peremptory challenge because the subsequent lower court proceeding, specifically the subject hearing, constitutes a “new trial” within the meaning of section 170.6, subdivision (a)(2).
The Second Appellate District denied the petition. The court explained that there is no indication, despite the constitutional and practical distinctions between a new trial and the subject hearing, that the Legislature intended such a hearing on remand be considered a new trial under section 170.6, subdivision (a)(2). To the contrary, the legislative history of section 170.6, subdivision (a)(2) “does not support the assertion that the Legislature intended to permit a [peremptory] challenge at any hearing on remand in a criminal case.” Thus, section 170.6, subdivision (a)(2), was not intended “to counter every possible situation in which it might be speculated that a court could react negatively to a reversal on appeal.” The court concluded that the hearing conducted after a reversal and remand of a trial court’s order denying a petition for resentencing is not a “new trial” within the meaning of section 170.6, subdivision (a)(2).
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