Gomez v. Superior Court
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In this case from the Court of Appeal of the State of California, Fourth Appellate District, Division Three, the petitioner, Eddie Gomez, Jr., sought to challenge a Superior Court judge's denial of his request to disqualify another judge, Judge Kimberly Menninger, who was set to consider his petition for resentencing under Penal Code section 1172.6.
Gomez had previously appeared before Judge Menninger for his arraignment, where he pleaded guilty to one count of attempted murder and two enhancements. Following the plea agreement, Judge Menninger dismissed the remaining counts and enhancements, sentencing Gomez to 11 years in prison. Later, Gomez filed a petition for resentencing under section 1172.6 and subsequently filed a peremptory challenge to disqualify Judge Menninger from ruling on this resentencing petition.
However, Judge Jonathan S. Fish denied the peremptory challenge, stating it was untimely and that Judge Menninger, as the sentencing judge, was required to handle the resentencing under section 1172.6. Gomez then sought a writ of mandate from the Court of Appeal, but his petition was denied.
Upon review of the case, the Court of Appeal held that Gomez's peremptory challenge was indeed untimely. The court reasoned that the resentencing proceeding was a continuation of the earlier criminal action, and therefore Gomez was not entitled to file a peremptory challenge at the resentencing stage. The court affirmed that when the judge assigned to examine and rule on the resentencing petition is the same judge who presided at the petitioner's earlier criminal action, the petitioner is not entitled to peremptorily challenge that judge. As a result, the court denied Gomez's petition for a writ of mandate.
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