Filed 7/27/20
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION THREE


 THE PEOPLE,                          B299905

         Plaintiff and Respondent,    (Los Angeles County
                                      Super. Ct. No. BH012446)
         v.

 THOMAS BRALEY,

         Defendant and Appellant.



      APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Reversed with
directions.
      David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
                      ——————————
       Thomas Braley appeals from an order denying his petition
for recall and resentencing on a prior serious or violent felony and
to be considered for elderly parole. After his appellate counsel
filed a brief under People v. Wende (1979) 25 Cal.3d 436, we
asked for supplemental briefing regarding whether the judge who
ruled on the petition was disqualified from doing so. Because we
conclude that the judge was disqualified from ruling on the
petition, we reverse the order and remand.
                         BACKGROUND
      In March 2007, a jury convicted Braley of second degree
robbery (Pen. Code, § 211) and of petty theft with priors (Pen.
Code, § 666). He was sentenced in April 2007 to 25 years to life
plus two 5-year terms for prior convictions under section 667,
subdivision (a)(1). On appeal, the conviction for petty theft with
a prior was vacated, and the judgment was affirmed as modified.
(People v. Braley (Aug. 14, 2008, B199140) [nonpub. opn.].) The
California Supreme Court denied review that same year, and the
United States Supreme Court denied certiorari in 2009.
      In March 2019, Braley filed a petition to dismiss the five-
year priors under newly-enacted Senate Bill No. 1393 1 and to be
considered for elderly parole under Penal Code section 3055. The
Honorable William C. Ryan was assigned to hear the petition.
Judge Ryan noted that in 2006 Braley had filed a motion to




      1 Effective January 1, 2019, Senate Bill No. 1393 amended
Penal Code sections 667 and 1385 to allow a court to exercise its
discretion to strike or to dismiss prior serious felony convictions
for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1–2.)




                                 2
disqualify him under Code of Civil Procedure section 170.6 2 in
the case underlying the petition. Being timely, Judge Ryan had
granted the motion, and the case was reassigned. However,
Judge Ryan found that he was not disqualified from now hearing
the petition because it was “a new post-conviction proceeding
assigned to” him by the director of the criminal writs center
under the Superior Court of Los Angeles County, Local Rules,
rule 8.33(a)(3), to which section 170.6 did not apply. In further
support of his ability to hear the petition, Judge Ryan cited Maas
v. Superior Court (2016) 1 Cal.5th 962. As to the substantive
issues, Judge Ryan found that Senate Bill No. 1393 did not apply
to Braley as Braley’s case was final long before the bill became
effective and denied the request for elderly parole without
prejudice because Braley failed to show he had exhausted his
administrative remedies.
       Braley then filed this appeal. After review of the record,
Braley’s court-appointed counsel filed an opening brief which
raised no issues, asking this court to conduct an independent
review of the record, under People v. Wende, supra, 25 Cal.3d at
page 441. Braley filed a supplemental brief. 3 We then asked the
parties to brief whether Judge Ryan was disqualified from
hearing the petition.




      2 Allfurther undesignated statutory references are to the
Code of Civil Procedure.
      3 Braley  attached numerous exhibits to his supplemental
brief, some of which we previously rejected for filing and are
irrelevant to the issues on appeal. We do not consider them.




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                          DISCUSSION
       Having granted the motion to disqualify himself in 2006
from the underlying case, was Judge Ryan disqualified from
considering the subsequent petition under section 170.6? As we
now explain, the answer is yes.
       Disqualification of a judge helps ensure public confidence in
the judiciary and protects litigants’ rights to a fair and impartial
adjudicator. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245,
1251 (Peracchi).) To that end, section 170.6, subdivision (a)(1)
provides that a judge “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” that the judge is prejudiced against a party or
attorney or the interest of a party or attorney in the action or
proceeding. If the motion is properly and timely made, then the
action shall be reassigned. (§ 170.6, subd. (a)(2), (3).) 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.” (§ 170.6, subd. (a)(2).) When a litigant meets the
requirements of section 170.6, disqualification of the judge is
mandatory, and there is no requirement it be shown the judge is
actually prejudiced. (Maas v. Superior Court, supra, 1 Cal.5th at
p. 972.) Section 170.6 must be liberally construed in favor of
allowing a peremptory challenge, which should be denied only if
the statute absolutely forbids it. (Maas, at p. 973.) We review a
court’s ruling on a section 170.6 issue de novo where, as here, the
facts are undisputed. (Andrew M. v. Superior Court (2020)
43 Cal.App.5th 1116, 1124.)
       When a motion to disqualify is made in a subsequent
proceeding, the motion’s propriety and timing depend on whether




                                 4
the subsequent proceeding is a continuation of an earlier action
or a separate and independent proceeding. “ ‘A peremptory
challenge may not be made when the subsequent proceeding is a
continuation of an earlier action.’ ” (Manuel C. v. Superior Court
(2010) 181 Cal.App.4th 382, 385.) A subsequent proceeding is a
continuation of an earlier action, so as to preclude a peremptory
challenge to the judge, if the action involves substantially the
same issues and matters necessarily relevant and material to the
issues involved in the prior action. (Ibid.; Yokley v. Superior
Court (1980) 108 Cal.App.3d 622, 626.)
       Here, Judge Ryan was disqualified from presiding over
Braley’s 2007 criminal trial. If Braley’s subsequent 2019 petition
to dismiss his five-year priors and to be considered for elderly
parole were a continuation of that original action, then Judge
Ryan would have been disqualified from hearing the petition.
But if the petition were a separate and independent action, Judge
Ryan would not have been disqualified from hearing it, and
Braley would have had to file a new motion to disqualify Judge
Ryan.
       Judge Ryan determined that the petition was separate and
independent from the criminal trial because the petition was a
postconviction proceeding assigned to him by the director of the
criminal writs center per the Superior Court of Los Angeles
County, Local Rules, rule 8.33(a)(3). However, that rule merely
dictates assignment of certain petitions concerning, for example,
parole matters. Even if Braley’s petition were properly assigned
to Judge Ryan under that rule, nothing in the rule states that
section 170.6 is inapplicable to matters assigned to a judge
thereunder. And if the rule did so state, then it would be invalid




                                5
to the extent it conflicted with section 170.6. (See Elkins v.
Superior Court (2007) 41 Cal.4th 1337, 1351–1352.)
       The procedural fact that the petition was a postconviction
matter assigned per local rules does not answer the key question
presented here: whether the petition involved substantially the
same issues and matters necessarily relevant and material to the
issues in Braley’s prior criminal trial. As to that issue, Braley’s
petition raised sentencing issues, i.e., whether he was entitled to
have priors stricken or dismissed and to be considered for elderly
parole. These issues are inextricably linked to what occurred at
trial.
       The court in Peracchi, supra, 30 Cal.4th 1245 considered
the general nature of sentencing within the specific context of
whether resentencing after a remand is a new trial within the
meaning of section 170.6, subdivision (a)(2). 4 That section
permits a party to move to disqualify a judge following either
reversal on appeal of a decision or final judgment of that judge, if
the trial judge in the prior proceeding is assigned to conduct a
new trial in the matter. (§ 170.6, subd. (a)(2).) The defendant in
Peracchi had appealed from a judgment of conviction and the
case was remanded to the trial court to retry one of the counts
against him or, if the prosecution elected not to retry it, for
resentencing. (Peracchi, at p. 1250.) On remand, the matter was
assigned to the judge who had presided over trial. The defendant
moved to disqualify the judge, who denied the motion because the
prosecution had elected not to retry the count at issue. (Ibid.)


      4Peracchi, supra, 30 Cal.4th at page 1248 considered a
former version of section 170.6, subdivision (a)(2). That former
version is substantively unchanged from the current one.




                                 6
The matter therefore was before the judge for resentencing only.
Peracchi concluded that the motion was properly denied because
resentencing after remand is not a new trial within the meaning
of the statute. (Id. at pp. 1257–1258.)
       In reaching that conclusion, Peracchi, supra, 30 Cal.4th
1245 made observations about sentencing that are apt here. At a
sentencing or resentencing hearing the trial court resolves issues
in light of what occurred at trial. (Id. at p. 1254.) For this
reason, the usual procedure is to have the judge who presided
over trial preside over sentencing and resentencing. (Ibid.) The
original trial judge is in the best position to preside because the
original trial judge must exercise sentencing discretion “on the
basis of the preexisting trial record and verdict.” (Id. at p. 1257.)
The court may consider certain factual issues that relate to the
choice of appropriate sentence, “but the court resolves those
issues in light of what occurred at trial, including its own
impressions of matters such as the defendant’s demeanor and
conduct at trial.” (Id. at p. 1254.)
       Peracchi’s reasoning as to why resentencing does not
constitute a new trial supports a conclusion that resentencing is
also a continuation of the original action. What happened at trial
appropriately informs sentencing decisions. Braley’s petition—
whatever its procedural merits—asked to have his five-year
terms stricken or dismissed in the interests of justice. Whether
to strike or to dismiss a prior felony enhancement under Senate
Bill No. 1393 is a discretionary call that necessarily will be
informed by what happened at trial. Stated otherwise, whether
to strike or dismiss the enhancement is bound to involve a
“contested issue of law or fact.” (§ 170.6, subd. (a)(1).) When
Braley successfully moved to disqualify Judge Ryan from




                                  7
presiding over his trial, Braley did so presumably in part because
he did not want him in a position to exercise discretion over
contested issues of law or fact.
      Similarly, what happened at Braley’s trial will necessarily
inform whether he should be considered for elderly parole.
Although a criminal trial deals with the determination of the
defendant’s guilt for the crimes charged and parole concerns an
inmate’s suitability for release into the community, the two
issues are not independent of each other. Rather, a life prisoner’s
suitability for parole requires consideration of, among many
factors: the prisoner’s criminal history; the commitment offenses;
behavior before, during, and after the crime; and past and
present attitude toward the crime. (Cal. Code Regs., tit. 15,
§ 2402, subd. (b).) Circumstances surrounding the commitment
offense, for example, if it was committed in an especially heinous,
atrocious, or cruel manner, may weigh against a grant of parole.
(Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).) To this, the Elderly
Parole Program provides that when the Board of Parole Hearings
considers the release of an “inmate who is 60 years of age or older
and has served a minimum of 25 years of continuous
incarceration,” (Pen. Code, § 3055, subd. (a)) “the board shall give
special consideration to whether age, time served, and
diminished physical condition, if any, have reduced the elderly
inmate’s risk for future violence” (Pen. Code, § 3055, subd. (c)).
Hence, suitability for parole implicates issues necessarily
relevant and material to those resolved at trial.
      Because the issues Braley raised in his petition were a
continuation of the underlying action from which Judge Ryan
was disqualified, Judge Ryan was also disqualified from ruling on
the petition. Maas v. Superior Court, supra, 1 Cal.5th 962, does




                                  8
not convince us otherwise. The Maas court considered whether a
petitioner who collaterally attacks a criminal conviction and
sentence by filing a petition for writ of habeas corpus is entitled
to peremptorily challenge the judge before any order to show
cause is issued. In concluding that such a challenge may be
made, the court noted that a petition for writ of habeas corpus
may be summarily denied because it fails to state a prima facie
case for relief, or the claims are procedurally barred. (Id. at
p. 974.) Such an initial determination nonetheless may involve a
contested issue of law, and therefore the petitioner is entitled to
peremptorily challenge the assigned judge before any order to
show cause issues. (Id. at pp. 977–978.) Summary denial of a
petition does not mean that the court hearing the petition has not
considered the petition’s merits. (Id. at p. 978.)
       To the extent Judge Ryan’s summary denial of Braley’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 supports a conclusion that
Judge Ryan was disqualified from ruling on the petition.
       Finally, we recognize that another judge may reach the
same conclusion as did Judge Ryan, that Braley’s petition lacks
procedural merit. That may be, but the conclusion must be
reached by another adjudicator per the strictures of section 170.6.




                                9
                         DISPOSITION
       The order is reversed with directions to reassign the
petition to a different judge.
       CERTIFIED FOR PUBLICATION.



                                     DHANIDINA, J.

We concur:



             LAVIN, Acting P. J.



             EGERTON, J.




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