MAAS v. S.C. (PEOPLE)

Real Party in Interest, The People, Answer Brief on the Merits

Cal.September 29, 2015

Jn the Supreme Court of the State of California MICHAEL EUGENE MAAS, Petitioner, Vv. SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. Case No. 8225109 SUPREME COURT FILED SEP 99 2016 Frank A. McGuire Clerk Deputy Fourth Appellate District, Case No. D064639 San Diego County Superior Court, Case Nos. SCE 185960 and 188460 The Honorable John M. Thompson,Judge ANSWERINGBRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General GERALD A. ENGLER Chief Assistant Attorney General LISE S. JACOBSON Deputy Attorney General STEVE OETTING Deputy Solicitor General State Bar No. 142868 600 West Broadway,Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2206 Fax: (619) 645-2012 Email: Steve.Oetting@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page INtrOductiOn....... csc cseseeessetsscnecesecessecssssssessessccsscssecseenscascssessessesssceasesaasenes I Statement Of the Case... cc ceccssssssessesssssecsssessessesescsscssssesssesssssecsessanseatenes 1 | ALQUMENE 0.0... cccccccesescescseseeesrecssessecesesessareesneeseuseesuesaeseessaeessesaeseeersustueeees 4 I. Until a court has issued a writ of habeas corpus or an order to show cause,there is no right to a section 170.6 peremptory challenge in a habeas proceeding........0...0cue 4 A. The express language of section 170.6, subdivision (a)(1), grants a right to a peremptory challenge only wherethereis trial or a contested issue of law or fact .......cceseesesescsesseeee 6 B. The timeliness rules of subdivision (a)(2) do not obviate the requirement of a contested issue of LaW OF fACtoeeeeceessceseeseeescsssssssseeessecsecsececssssecsnecatenes 8 l, Prior proceedings on the merits...........0ccccc 9 2. All-purpose assignment.........cscssecseeseeesesees 12 3. The master calendarrule ............ccccce eee 14 C. The Court of Appeal’s expansion ofsection 170.6 vo.cceeeccesesscescesseeecsseceecssecssscsusssesseeseenscsessevsnevaeeess 14 D. The merefiling of a habeaspetition does not establish a right to trial or give rise to contested issues Of law Or fact 0... cecsssecsessessseesesssseseesseserseees 16 E, Habeaspetitions are not assigned to a judge for all purposes, at least before the issuance of a Writ OF OSC weecccsecssseestessesscescseesesscescssssessesseeaes 21 F, Case law interpreting section 170.6 in the habeas context comports with the requirement that a peremptory challenge may be made only after a writ or OSC hasissued .........cccccccseseeeceseees 24 G. Policy considerations militate against allowing a section 170.6 challenge before an OSC orwrit HAS ISSUCKoeeeeeecteeeseesesseeessessceeseessscscssseseaverses 26 COMCIUSION ......c.ecsceeeeeeeeeeseeseesesessssseesecssscsesecssssesscvavsssvasasaeatsersssevaceasaes 31 TABLE OF AUTHORITIES Page CASES Ball v. City Council (1967) 252 Cal.App.2d 136...ceeecesnseresseseesssssessessecnaneesenesaeesseesnees 11 Bambula v. Superior Court (1985) 174 CalApp.3d 653... eeesetssscsesseseerssseneessesesesseecsesseneens 11, 20 Berkeley Hillside Preservation v. City ofBerkeley (2015) 60 Cal.4th 1086eeeeceeeseeeseneeseesessersessesseeeerseesreserscenens 15 Briggs v. Superior Court (2001) 87 Cal.App.4th 312.eceeeereeseesecseesseersesssssseeessersesseeeenes 11 Brown vy. Swickard (1985) 163 CalApp.3d 820.0... eeeeceserseseeesseessestenseeessseesensssesnessseens 6 California Fed. Sav. & Loan Assn. v. Superior Court (1987) 189 CalApp.3d 267.00...ceseceeeseseessscneessersersecerseserserersscessseens ll Fightfor the Rams v. Superior Court (1996) 41 CalApp.4th 953 oo.ceeseeeeneeeecseeeseessesressesessseeeenseaees 10, 19 Fry v. Superior Court (2013) 222 CalApp.4th 475...ec ecseesserseerseeenseeessssseesessenesenresseeennens 27 Grant v. Superior Court (2001) 90 Cal.App.4th 518... eeeeesserseeeeeseeneeseessenseeees 7,10, 12, 29 Griggs v. Superior Court (1976) 16 Cal.3d 341oecsecsceceseeceseseeecreecseesseseesesensseeeeseesenes 22, 30 Guardado v. Superior Court (2008) 163 CalApp.4th 91eeceeeceseerreeseeeneerersreseeesseasesnusnsneeenees 10 Hospital Council ofNorthern Cal. v. Superior Court (1973) 30 Cal.App.3d 331eeeeseeesneceeeetsesneeesevsessesseensueseseesensesnees 10 Inre Abdul Y. (1982) 130 Cal.App.3d 847.0... ceccceseccessceesserseeseeesesseseneteneetonsns 11, 12, 27 il In re Borlik (2011) 194 CalApp.4th 30.0... cccccssssssseseeesseecescessaeeessessscsssensvenes 29 In re Clark | (1993) 5 Cal.4th 750 oo... ccccccccssscccsseccssssccssesscssessecesceeestasestseestreess 16, 17 In re Crow (1971) 4 Cal.3d 613vciccccccsscecesssscessecsnsseccsnceseceesecessacersseenseessanees 28 In re Hochberg (1970) 2 Cal.3d 870... ccc cceessscsssseccesssccessscsnscecsssseseveesevsestarecsusesssessrseens 17 In re Lewallen (1979) 23 Cal.3d 274... ccccccccccscccssscsesseccescesseccessrecseeecessessssscsauessssseesees 18 In re Rosenkrantz (2002) 29 Cal.4th 616 wc... cccccccsscccsesssevssecesccessscececesecsessreecssesseueesasens 29 In re Saunders (1970) 2 Cal.3d 1033... cccescssssccccssscecssccessceeecesseccessceseststeseereneees 18, 19 In re Sanders (1999) 21 Cal.4th 697 ooo ccicsccccessscccsseccssscccessseccececeeeetsuessusenseseserees 16 In re Serrano (1995) 10 Cal.4th 447 vocceecscsccccssccesscesessecevscesecsrssestssssrasesesesees 29 In re Stevenson (2013) 213 Cal.App.4th 841...ccccscscessssccssesccetsesessscseseessnsesssass 29 Jacobs v. Superior Court (1959) 53 Cal.2d 187... eeeccessescssessssseesseseeesescssseesesssssssavevsvasacessasensas 25 Johnson v. Superior Court (1958) 50 Cal.2d 693occieescssenssssesesssecsesecsesesseessessssesseuesesvevaceucsesesss 7 In re Jose S. (1978) 78 CalApp.3d 619.0... cccccccscccsscsessssccssecsecesessssecssscacesscsseesvese 12 Kohn v. Superior Court (1966) 239 Cal.App.2d 428... cccccsscsesesscsesscsssssssscssessesatssseececsseasaes 11 Lyons v. Superior Court (1977) 73 Cal.App.3d 625 ......ccccccsscseesssssscsssscssssssesesesesesaseevssseases 24, 25 ili Mathewsv. Superior Court (1995) 36 Cal.App.4th 592... eeseeeeseerserseesssssnessssesseeceseneseneseanrenes 7 McCarney v. Commission on Judicial Qualifications (1974) 12 Cal.3d S12... ccceeececeeeeesnteesreceeesaetsesesreceesseessessenernseaeears 6 Mezzetti v. Superior Court (1979) 94 CalApp.3d 987.00... ececsssesccecssrecsreescsseceeesessseneesaeeeneseseeaneenss 7 Orion Communications, Inc. v. Superior Court (2014) 226 Cal.App.4th 152.0... .cccecssccccsssecsssessrecsresssseseseseeseaeeesseesnesees 7 Pappa v. Superior Court (1960) 54 Cal.2d 350.ceeceeeessneeeeeseeecnseeseeeneeseaeeeseatessserenneeneees 27 People v. Cruz (1996) 13 Cal.4th 764 ...seseeneevseseaeesaeesaeeneeaeseesaesaeeseetaeessenaessesseeas 15 People v. Duvall (1995) 9 Cal.4th 464oececcssecsssesessecsaessessessessesseeeaes 16, 17, 18, 19 People v. Gonzalez (1990) 51 Cal.3d 1179.eccessrersneeeessecsseseeessscessesseesensenes 16, 17, 23 People v. Pieters (1991) 52 Cal.3d 894.0. csceccsscesscsscsssessecsseseeseeseecsseesscesesseeerssaserees 15 People v. Romero (1994) 8 Cal4th 728 oo. ccccscccssssscesseesesssseecssecessessuesseeteesseeessesenspassim People v. Smith (1962) 196 Cal.App.2d 854.0... eecsccssccsssecsseesessecsseseseseeseeesseenseses 24, 25 People v. Superior Court (Lavi) . (1993) 4 Cal.4th 1164 ooesccssecstesseecssesssessessseeesseessecsatesssereenespassim People v. Villa (2009) 45 Cal.4th 1063 oo. escecssecseesssecseeessessesseesecsessssscsessesseeesesaees 16 School District ofOkaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126.0... cccccccccssesssesseesssenseccssecsesesseeeseeceenees 10 Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778... cssesecsseesssessesesscsseeseesesressecesesseessessetsssesseeesaes 6 iv Swartzman v. Superior Court (1964) 231 CalApp.2d 195.ccccccssscssessessessecsssessecssesssessesscseeseceess 11 Woodmanv. Superior Court (1987) 196 Cal.App.3d 407... ceecsssessssssssscssessecsseesseesssesecsessens 10, 13 Yokley v. Superior Court (1980) 108 Cal.App.3d 622.0... ceccsecsesesseessensesseeeeeesses 24, 25, 26, 27 Zdonek v. Superior Court (1974) 38 Cal.App.3d 849...cccccssssessssseessestessseeseeesees 10, 12, 19, 21 STATUTES Code of Civil Procedure STO eeeee eeceseneceseessstsecssecsecsseeesssessucesesssesuscceucususessesesavsessasearsesseats 6 § 170.6. eescesecessesnetseceseeetecsacsaeeseessuessecssssstssecseseseeseesssecsesrscenesaeespassim § 170.6, subd. (€)(1) oe eecceceeseesseecssesseeesssesseens vesseeesaneeeessaeersaeeeneespassim § 170.6, SUD. ()(2) ....cceccsssscesessseesscssccsscesesssesscesccsssessessueaseacenenspassim § 170.6, Subd. (A)(4) oo. eeeeccsscecesseccscsssssecessssecseessressatescusesseesuens 7,27, 29 Penal Code FSDeeeeseescnseesnecssesstsseseesecsesessessecssevsscssssassseseseaessacessessaseusnssencasseass 2 § 470, SUDA. (A)...eceecessseesssssesscceseessessessscsscessssessuscsevessevsnsesesacsaesareaeenss 2 § 487, SUDA. (d) oo... eeceesecsssssssessesecesscsseessssssssssssseasesssesacscersaetsessecavsnessenses 1 § 667, SUAS. (D)-(i) occceesessceseecsecsseeesessscscssessccsusssecsesssetaevscseeeaesausnes 1 § OOS ie esccessecsseseesssesseeseeecsesssesssssseesesssessecsesucsscsssersessasscassateassansaecanss 11 § L1702eeecessessecsssssseessssssesssesessecssesssssessscsssseseeasesssnseearsaesaeaeenss 2 § 1170126eeeescesecssssessessessesssessecsssssessesrsssssvsuseaecveceserecsessecaseaseresass 2 § 476eeseeeteeeetecsseecssessesseesecssessecseseessessessscesseevsesssessesseaens 17, 26 § L480.esecnsterssessscceecsesseesssessecsesesscsecsecsssvaserseevseesssearsarsansaecaaes 18 § 1484eessesssssesessesssesseesscssucseserscsussusesuvssceaersesuanessesreseses 19, 20 Stats. 1957, ch. 1055, § 1, p. 2288... ceccssssscsececcsssseasessessusstsaeesssscesens 24 Stats. 1965, ch. 1442, § 1, p. 3375 .cccccccssccsssssscssessessesseeeseseressscssesecseesens 12 Vehicle Code § LO851, SUA. (8)...ee eecsesssesscceessecssecsecsssssesecsucsuscerecesseaeseesersarsaesess 1 CONSTITUTIONAL PROVISIONS California Constitution Art. VI, § 10 weccceccsssscsssscccssssnerecscessesssesesesssusesevsvsrenstecenevensasseseeesess 28 COURT RULES 23 West’s California Codes Ann. Rules, pt. 2 (1992 supp.)ceeeee eee eters 23 California Rules of Court Tile 8.516(D)(2) oeeeseecesscesetseeeeaceseeaceessesessaesaessesereeaeensenaeesseesaetees 4 OTHER AUTHORITIES Cal. Stds. Jud. Admin, § 19, subds. (€), (d).......c:ecessecsesssesssseeseeeseeeestesseeens 23 Report of the Committee on Administration of Justice (1964) 39 State Bar Jourrnal ..........cececcccccccccssssccsseessceecssssuceecsscessessesessreceses 12, 27 vi INTRODUCTION In 1998, petitioner Michael Eugene Maas wasconvicted ofseveral theft-related offenses in two separate cases. Because he had previously suffered twoprior strikes, the trial courts sentenced him to a total consecutive term of 50 yearsto life. Maas unsuccessfully appealed his sentence, but then waited until 2013 before bringing a petition for writ of habeas corpusin the San Diego Superior Court challenging the performanceofhis trial and appellate attorneys. When Judge John M. Thompson summarily deniedthe petition, Maas brought a habeaspetition in the Court of Appeal, adding the allegation that if he had known Judge Thompsonwasassignedto the case, Maas would have peremptorily challenged him under CodeofCivil Procedure section 170.6 (section 170.6). Based on this representation, the Court of Appeal remandedthe matter to a different superior court judge to reconsider Maas’s petition. The Court of Appealerredin so ruling. Challenges undersection 170.6 may beraised only in matters involving eithera trial or a contested issue of law or fact. A habeas proceeding, at least prior to the issuance of a writ or an order to show cause (OSC),is neither. The judge must simply determine whetherthe petition states a prima facie case, or whether instead it should be summarily denied. At this stage, the court’s role is most analogousto a ruling on a demurrer, a motion that does notgiverise to the right to make a peremptory challenge. STATEMENT OF THE CASE On April 6, 1998,after a trial presided over by Superior Court Judge Allan J. Preckel, a San Diego County jury found Maasguilty of grand theft automobile (Pen. Code, § 487, subd. (d)) and unlawfultaking or driving of a vehicle (Veh. Code, § 10851, subd. (a)). The court later found true that Maashadsuffered twoprior strikes (Pen. Code, §§ 667, subds.(b)-(i), 1170.12) and sentenced him to serve 25 years to life in prison. (San Diego County Superior Court August 7, 2013 order in case no, EHC 942at 2 [describing procedural history in case no. SCE 185960] (case no. EHC 942 order); case no. EHC 942 pet. at 2.) On August 21, 1998, after a separate trial presided over by Court Judge Larrie R. Brainard, a San Diego County jury found Maas Superior guilty of burglary (Pen. Code, § 459) and forgery ofa fictitious check (Pen. Code, § 470, subd. (a)). Once again, the court found that Maas had suffered twoprior strike convictions and sentenced him to serve 25 years to life in prison consecutive to his other term. (Case no. EHC 942 order at 2 [describing procedural history in case no. SCE 188460]; case no. EHC 942 pet. at 2.) Maas appealed both convictions and the Court of Appeal denied both. appeals. (Case no. EHC 942 orderat 2.) On November26, 2012, Maasfiled a petition for recall of sentence and resentencing pursuant to Penal Codesection 1170.126 in both cases. After appointing counsel to represent Maas,the superior court denied the petition on January 14, 2013, finding that Maas was disqualified from relief because oneofhis prior strikes was for attempted murder. (Case no. EHC 942 orderat 2.) Fifteen years after he wasfirst sentenced, on July 13, 2013, Maasfiled a petition for writ of habeas corpus in the San Diego County Superior Court alleging he received ineffective assistance of counsel becausehistrial attorneys failed to properly challengethe prior serious felony convictions. (Case no. EHC 942 pet. at 1-6.) On August 7, 2013, San Diego Superior Court Judge John M. Thompsonissued a written order summarily denying the petition. Judge Thompson concludedthepetition failed to justify the substantial delay, and also failed to establish good causeto relitigate the underlying challenge to the strike priors, which waspreviously raised both at sentencing and on direct appeal. (Case no. EHC 942 orderat 4.) Maasfiled a petition for writ of habeas corpusin the Court of Appeal, Fourth Appellate District, Division One, alleging he received ineffective assistance of counsel in his twotrials and later on direct appeal. As part of this claim, Maas maintained that had he been advised the case was assigned to Judge Thompson, Maas would have made a peremptory challenge under section 170.6. He further asserted that the failure to notify him of Judge Thompson’s assignmentviolated his equal protection rights, and that his petition should be remandedto be reassigned and reheard. (Case no. D064639 pet. at 2.) As exhibits to his petition, Maas included, amongother things, a July 19, 2013 letter he sent to the San Diego County Superior Court, in which he requested notification of the date his petition was filed, the case number, and the judge to whom it was assigned. (Case no. D064639 pet. exh. B.) He also included an August 4, 2013 letter, in which he again wrote to the court, explaining that although he had previously requested to be notified of the judge assigned to his case, all he received in return wasa file-stamped copyofthe first page of the petition, which also noted the case number. (Case no. D064639, pet. ex. D; see also exh. C [filed-stampedpetition].) This letter was dated three days before Judge Thompson’s August 7th order denying the petition. Finally, Maas included a declaration in which he averred under penalty of perjury that had he been advised that Judge Thompson wasassigned to the case, Maas would have followed the advice of his brother and requested another judge under section 170.6. (Case no. D064639 pet. exh. G.) After first requesting and receiving an informal response from respondent, the Court ofAppeal issued an order to show cause and appointed counsel for Maas. Maas’s appointed counsel filed a supplemental petition for writ of habeas corpus. (D064639slip opn.at 3-4.) In a published decision, the Court ofAppeal thereafter held that where a habeaspetitioner collaterally attacks his or her criminal conviction and the “matter” is assigned to a judge other than the originaltrial judge, the petitioner may assert a peremptory challenge under section 170.6 to the judge assigned to the petition. (0064639slip opn. at 2.) In reaching this holding, the Court of Appeal concludedthat section 170.6 applies in “any” civil or criminal action or special proceeding of “any kind or character.” (/d. at p. 4.) The court reasoned that Maas was improperly deniedhis right to assert a section 170.6 challenge to Judge Thompson;therefore, the Court of Appeal issued a writ of mandate ordering the superior court to vacate its order denying the petition for writ of habeas corpus andto reassign the petition to a different judge. (/d. at pp. 6-7.) This court granted review on its own motion and designated Maas as the petitioning party. ARGUMENT I. UNTIL A COURT HAS ISSUED A WRIT OF HABEAS CORPUS OR AN ORDER TO SHOW CAUSE, THERE IS NO RIGHT TO A SECTION 170.6 PEREMPTORY CHALLENGEIN A HABEAS PROCEEDING As the express language of section 170.6 reveals, that provision grants a limited right that allows for peremptory challenges only wherethere is a trial or a contested issue of law or fact.' Until a court issues a writ of habeas ' In the proceedings below, respondentdid not specifically argue that section 170.6 does not apply to habeaspetitions before an OSC hasissued. Nevertheless, this court may decide the issue becauseit gave the parties reasonable notice and opportunity to brief and argueit. (Cal. Rules of Court, rule 8.516(b)(2).) The Court of Appeal’s published decision in this — case created a rule of state-wide importance that stands to affect superior courts and habeas corpuspetitioners throughout the state. Accordingly, because this court has granted review on its own motion andthe parties (continued...) corpus or an OSC,there is neithera trial nor a contested issue of law or fact. Moreover, habeas corpuspetitions do not fall within any recognized exception, such asthe all-purpose assignment or master calendar rules. The Court of Appeal re-drafted the unambiguousstatutory language to omit any requirementofa trial or a contested issue of law or fact, instead expanding | the provision to encompass any type ofcivil, criminal, or special proceeding. This waserror. Maasdoesnot attempt to defend the Court of Appeal’s statutory expansion. Instead, he focuseson cases holding that where an actionis, in essence, a continuation of anotherrelated case, a party may use a peremptory challengeif, and onlyif, the judge in the new matteris different than the original trial judge. Maas notes that when the second matter involves a new judge,thereis little risk of “judge shopping” to remove the jurist most familiar with the facts. (ABOM 10-18.) He urgesthat failure to allow an opportunity to disqualify a judge with a perceived bias would . undermine the substantial rights afforded by section 170.6 and that providing this right to habeas petitioners at the time a petition is filed would be easy to administer and would not waste judicial resources. (ABOM 19- 22.) | Maas’s argumentfails for the simple reason that the limited right to disqualify a judge under section 170.6 does not accrue untilthereisa trial or a contested issue of law or fact. Established law reveals the merefiling of a habeas petition does not byitself create a cause; rather, habeas proceedings are notinstituted until a writ or OSC hasissued. This interpretation comports with the policies behind both section 170.6 and (...continued) have briefed the issue,it is appropriate for this court to decide the issue presented. habeas corpus writs in general. And while case law has treated a habeas proceeding as a continuation of the underlyingtrial in order to avoid abusing section 170.6, the practical considerations givingrise to this rule apply only after a cause has been created by the issuance of an OSC or a writ. A. The Express Languageof Section 170.6, Subdivision (a)(1), Grants a Right to a Peremptory Challenge Only Where There Is a Trial or a Contested Issue of Law or Fact A judge maybedisqualified for cause if, among other reasons, the judge has knowledge of disputed facts, served as a lawyerin the proceeding,hasa financial stake in thelitigation, is related to one of the parties, or for any reason believes recusal would further the interests of justice or there is a substantial doubtas to his or her capacity to be impartial. (Code Civ. Pro., § 170.1.) But even where a party cannot make the showing necessary to disqualify a judge for cause under section 170.1, section 170.6 allows a party to peremptorily challenge a judicial officer whom the party believes to be prejudiced against either the party, the party’s attorney, orthe interests of either, such that the party cannot receive a fair and impartial trial or hearing. (§ 170.6, subds. (a)(1) & (2).) Unlike section 170.1, if the section 170.6 motionis timely filed and supported byanaffidavit of prejudice, the judge must be recused without further proof and the cause must be reassigned to another judge. (McCarney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531 [right under § 170.6 is ‘automatic’ in the sense that a goodfaith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.”’}, overruled on other grounds in Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 799, fn. 18; Brown v. Swickard (1985) 163 Cal.App.3d 820, 824.) “‘The right to exercise a so-called peremptory challenge against a judgeis a creation of statute—it did not existin the commonlaw predating enactment of section 170.6.’” (Orion Communications, Inc. v. Superior Court (2014) 226 Cal.App.4th 152, 157.) However, “[s]ection 170.6 provides only a limited right and is not a vehicle for disqualifying judges in all situations in which thereis the potential for bias.” (Mathews v. Superior Court (1995) 36 Cal.App.4th 592, 598.) “The possibility that the section may be abused byparties seeking to delaytrial or to obtain a favorable judge was a matter to be balanced bythe Legislature against the desirability of the objective of the statute.” (Johnson v. Superior Court (1958) 50 Cal.2d 693, 697.) Indeed, “[t]he intent of the Legislature to providea limited right to a peremptory challengeis clear in the legislative history as well as the languageofthe statute.” (Grantv. Superior Court (2001) 90 Cal.App.4th 518, 525.) For instance, section 170.6 allows for only one challenge per action per side, even whenthere are multiple parties on a side. (§ 170.6, subd. (a)(4).) Further, section 170.6, subdivision (a)(1), specifies it applies solely to safeguard theright to fair trials and matters “therein” that involve “a contested issue of law or fact”: A judge, court commissioner, or referee of a superior court of the State of California shall nottry a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue oflaw orfact whenit is established as provided in this section that the judge or court commissioneris prejudiced against a party or attorney orthe interest of a party or attorney appearing in the action or proceeding. (§ 170.6, subd. (a)(1), emphasis added.) Thus, for example, a peremptory challenge cannotbe usedto disqualify a judge from presiding overa settlement or case management conference, because neither such conference involvesa trial or a hearing involving a contested issue of fact or law. (Grant v. Superior Court, supra 90 Cal.App.4th at pp. 526, 528; Mezzetti v. Superior Court (1979) 94 > Cal.App.3d 987, 991.) As discussed further below, this requirementof a contested issue of law or fact is dispositive of the question presented here. B. The Timeliness Rules of Subdivision (a)(2) Do Not Obviate the Requirement of a Contested Issue of Law or Fact Although subdivision (a)(1) speaks to the types of proceedingsin which a peremptory challenge may be used, frequently courts also discuss which proceedings are covered by section 170.6 when addressing whether a peremptory challenge was timely filed under subdivision (a)(2). That subdivision providesa lengthy list of rules relating to when a motion must be raised in order to be consideredtimely.” In general, a peremptory * Section 1706, subdivision (a)(2), provides as follows: “A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement underoath, that the judge, court commissioner, or referee before whom the action or proceeding is pending, or to whomitis assigned,is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartialtrial or hearing before the judge, court commissioner, or referee. If the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to, or whois scheduledto try, the cause or hear the matter is knownat least 10 days before the date set for trial or hearing, the motion shall be madeat least 5 days before that date. If directed to the trial of a cause with amaster calendar, the motion shall be made to the judge supervising the master calendarnot later than the time the cause is assignedfortrial. If directed to the trial of.a criminal cause that has been assigned to a judgeforall purposes, the motion shall be made to the assigned judge orto the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appearedin the action, then within 10 daysafter the appearance. If directed to thetrial of a civil cause that has been assigned to a judge for all purposes, the motion shall be madeto the assigned judge or to the presiding judge by a party within 15 days after notice ofthe all purpose assignment,or if the party has not yet appearedin the action, then within 15 days after the appearance. If the court in which the action is (continued...) challenge is permitted any time before the commencementofa trial or hearing. (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171.) Subdivision (a)(2) recognizes exceptions to this general rule where, among other things, there have been prior proceedings on the merits, an “all- (...continued) pendingis authorized to have no more than one judge, and the motion claimsthat the duly elected or appointed judge ofthat court is prejudiced, the motion shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion. In no event shall a judge, court commissioner, or referee entertain the motion ifit is made after the drawing of the nameofthe first juror, or if there is no jury, after the making of an opening statement by counsel for plaintiff, or if there is no opening statement by counselfor plaintiff, then after swearing in the first witness or the giving of any evidenceoraftertrial of the cause has otherwise commenced.If the motion is directed to a hearing, other than thetrial of a cause, the motion shall be made not later than the commencementofthe hearing. In the case oftrials or hearings not specifically provided forin this paragraph,the procedure specified herein shall be followed as nearly as possible. The fact that a judge, court commissioner, or referee has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion priorto trial, and not involving a determination of contested fact issues relating to the merits, shall not precludethelater making of the motion provided for in this paragraph at the time andin the manner herein provided. ‘A motion under this paragraph may be made following reversal on appeal ofa trial court's decision, or following reversal on appeal ofa trial court's final judgment,if the trial judge in the prior proceeding is assigned to conducta newtrial on the matter. Notwithstanding paragraph(4), the party whofiled the appeal that resulted in the reversal of a final judgment of a trial court may make a motion underthis section regardless of whether that party or side has previously done so. The motion shall be made within 60 daysafter the party or the party's attorney has been notified of the assignment.” purpose assignment,” ora trial assignment by a master calendar department. (See generally, Lavi, supra, 4 Cal.4th at p. 1171.) 1. Prior proceedings on the merits Even if a peremptory challenge is otherwise timely,it “must be denied if the judge has presided at an earlier hearing which involved a determination of contested factual issues relating to the merits.” (Grant, supra, 90 Cal.App.4th at p. 525.) As section 170.6, subdivision (a)(2), alternatively expresses in the negative: “The fact that a judge, court commissioner, or referee has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion priorto trial, and not involving a determination of contested fact issuesrelating to the merits, shall not preclude the later making of the motion provided for in this paragraphat the time andin the mannerherein provided.” So expressed, this rule is simply a complimentto the requirement of subdivision (a)(1) that a peremptory challenge is available only where there is a contested issue oflaw orfact. Courts interpreting this provision have concludedthat initial court rulings on a variety ofpretrial motions do not prevent a subsequent peremptory challenge. (See Guardado v. Superior Court (2008) 163 Cal.App.4th 91, 97, fn. 5 {listing examples]; School District ofOkaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1133-1134 [“Most pretrial motions are decided without a determination of contested facts related to the merits of the case.”’].) Most notably, several courts have concluded that an earlier demurrer does not involve “contested fact issues” so as to prevent a later challenge in the samecause.(See,e.g., Fightfor the Rams v. Superior Court (1996) 41 Cal.App.4th 953, 957; Zdonekv. Superior Court (1974) 38 Cal.App.3d 849, 852-853, abandoned on other grounds Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 410;cf. Hospital Council ofNorthern Cal. v. Superior Court (1973) 30 Cal.App.3d 10 331, 337 [motion for judgment on the pleadings].) Other courts have reached a similar conclusionin the context of a prior ruling on a motion for summary judgment. (See, e.g., Bambula v. Superior Court (1985) 174 Cal.App.3d 653, 655, 657; cf. Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 430-431 [motion to dismiss pursuant to Pen. Code, § 995].) On the other hand,a pretrial motion to suppress a confession has been held to be a contested adjudication on the merits because such a hearing necessarily involves an “adjudication that is of consequenceto the determination ofthe legal guilt or innocence ofthe accused.” (In re Abdul Y, (1982) 130 Cal.App.3d 847, 859-860; see also Briggs v. Superior Court (2001) 87 Cal.App.4th 312, 317 [ruling on motion to excludea report and testimony from probable cause hearing]; California Fed. Sav. & Loan Assn. v. Superior Court (1987) 189 Cal.App.3d 267, 270-271 [motion for summary judgment on a “make or break” issue considered a merits determination].) Section 170.6 did not always draw this dichotomy between matters heard on the merits and thosethat are not. Half a century ago, a party forfeited the right to exercise a peremptory challengeby failing to challenge a judge prior to a hearing on a demurrer. (See, e.g., Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 200; Ball v. City Council (1967) 252 Cal.App.2d 136, 145-147.) In 1965, however, the Legislature added the above-noted languagein subdivision (a)(2) excepting matters not involving “contested fact issues relating to the merits.”? The State Bar of California > The amended language provided: “The fact that a judge... has presided at or acted in connection with a pretrial conference or other hearing, proceeding, or motion priorto trial and not involving a determination of contested fact issues relating to the merits shall not (continued...) 1] drafted and sponsoredthe legislation “to permit the litigant to exercise his peremptory right to disqualify a judgepriorto trial ‘notwithstanding that the judge had earlier heard demurrers and motions without challenge.’” (Abdul Y., supra, 130 Cal.App.3d at p. 858, quoting Zdonek v. Superior Court, supra, 38 Cal.App.3d at p. 852; see also Jn re Jose S. (1978) 78 Cal.App.3d 619, 626.) As the State Bar explained, in contrast to a preliminary injunction hearing, “‘hearings on demurrers, pleadings and other matters before trial are comparatively routine and should not result in. waiver.’” (Abdul Y., supra, 130 Cal.App.3d at p. 858, quoting Report of the ~ Committee on Administration of Justice (1964) 39 State Bar J. 496, 498.) The State Bar outlined four specific benefits that the amendment would bring: “The committee believes that the suggested change in Section _ 170.6, if enacted into law, will (1) conserve judicial manpower on the smaller counties; (2) reduce the number of disqualification motions statewide; (3) preserve the motion for the important situation where fact determinations are involved, such astrials; (4) recognize that preliminary motions and matters are often handled in routine fashion by an attorney other than the one whowill try the case, without the presenceofthe client (whose viewsand information are important on a disqualification motion).” (bid.) . 2. All-purpose assignments In addition to trials and contested issues of law orfact, at least one court has concludedthat section 170.6 also applies when a case involves an all-purpose assignmentto a specific judge. (Grant v. Superior Court, supra, 90 Cal.App.4th at p. 522 [The limited right of section 170.6 doesnot. . . (...continued) preclude the later making of the motion provided for herein at the time and in the manner hereinbefore provided.” (Stats. 1965, ch. 1442, § 1, p. 3375.) 12 permit a peremptory challenge to be filed or accepted absent a pendingtrial, a pending hearing involving a contested issue of fact or law,or anall purpose assignment.”]; see generally Lavi, supra, 4 Cal.4th at pp. 1172, 1178-1182 [for any given factual scenario, it must be determined whether any of section 170.6, subdivision (2)’s pertinent exceptions (the 10-day/5- day rule, the master calendar rule, or the all purpose assignmentrule) are applicable, or whether the general rule (the commencementoftrial rule) should apply.”]; cf. Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 421 [creating judicial all-purpose exception prior to amendmentof § 170.6, subd. (a)(2)].) Theall-purpose assignmentlanguageis not found in subdivision (a)(1), which generally defines the applicability of the statute. Instead,it is first referenced in subdivision (a)(2), which addresses the timing of such challenges and whichstates in relevant part: If the judge, other than a judge assignedto the case forall purposes, court commissioner, or referee assigned to, or who is scheduled to try, the cause or hear the matter is knownatleast 10 days before the date set for trial or hearing, the motion shall be madeat least 5 days. before that date... . If directed to the trial ofa criminal cause that has been assignedto a judgeforall purposes, the motion shall be madeto the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment,or if the party has not yet appeared in the action, then within 10 days after the appearance.If directed to the trial ofa civil cause that has been assignedto a judge for all purposes, the motion shall be madeto the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment,or if the party has not yet appeared in the action, then within 15 days after the appearance. (§ 170.6, subd. (a)(2), italics added.) It is unclear from this languagethat the all-purpose assignmentcreates a third category of cases in which a peremptory challenge may be made. Given the context of subdivision (a)(2), it seems that this provision relates 13 to the timing of the challenge, rather than the criteria for bringing the challenge, which are given in subdivision (a)(1). The language of subdivision (a)(2) reveals the all-purpose assignment is concerned with the “trial” of either a civil or criminal “cause.” Thus, rather than create a third category of applicable cases, the all-purpose assignmentrule is arguably simply a subset of the requirementofa trial in subdivision (a)(1). As discussed further below, however, it is unnecessary to decide this somewhat metaphysical question in order to resolve this case, which does not involve an all-purpose assignment. 3. The master calendar rule The master calendar rule applies whena trial-ready case is assigned to a trial-ready courtroom by a master calendar department. (Lavi, supra, 4 Cal.4th at pp. 1175, 1177.) Because the case mustbetrial ready before the assignment is made,this exception to the timeliness rule does not alter the requirementof subdivision (a)(1) that peremptory challenges are available for trials and matters “therein.” In any event, there is no suggestion that this rule would apply in the present context where there is no evidence of an assignment by a master calendar department, let alone an assignmentto a trial ready department. C. The Court of Appeal’s Expansion of Section 170.6 In the present case, the Court of Appeal expanded the reach of section 170.6 well beyondthe statutory language. It concludedthat “by its terms” this section applies “in any ‘civil or criminal action or specialproceeding of any kind or character.’”(Slip opn.at 4, quoting § 170.6, subd. (a)(1), italics added by Court of Appeal.) Because habeas corpusis generally regarded as a special proceeding, the court reasonedthat “a petitioner seeking a writ of habeas corpus mayassert a challengeto the judge assignedto the petition.” (Slip opn. at 4.) But section 170.6 does not say 14 that it applies in “‘any”civil or criminal action or special proceeding; instead, it states that a judicial officer shall not “try” such a proceeding or hear any matter therein that involves a “contested issue of law or fact” when a party believes the judicial officer is prejudiced. (§ 170.6, subd. (a)(1).) The Court of Appeal’s substitution of the word “any”for “try” was dramatic. As drafted by the Legislature,the first clause of section 170.6, subdivision (a)(1), applies solely to matters that are tried, thatis, trials. The Court of Appeal eliminated this requirement and made the peremptory challenge provision applicable withoutlimitation. The court compoundedthis oversight by ignoring the second alternative provision of subdivision (a)(1) relating to “contested issues of law or fact” and thereby rendered that clause a nullity. Namely,if peremptory challenges are available withoutrestriction in any civil or criminal action or special proceeding of any kind, and are not limited to only trials of those actions or proceedings, then it would not make sense for _ the Legislature alternatively to prohibit a court from hearing “any matter therein that involves a contested issue of law or fact.” Such contested matters would already be included within the Court of Appeal’s definition of “any”civil or criminal action or special proceeding of “any kind or character” and would therefore be mere surplusage. (See Berkeley Hillside Preservation v. City ofBerkeley (2015) 60 Cal.4th 1086, 1104 [because construction would transform statutory language into meaningless surplusage,it is one court “‘should avoid.’”].) “The fundamental task of statutory construction is to ‘ascertain the intent of the lawmakers so as to effectuate the purpose ofthe law. [Citations.] In order to determinethis intent, we begin by examining the languageofthe statute.’” (People v. Cruz (1996) 13 Cal.4th 764, 774-775, quoting People v. Pieters (1991) 52 Cal.3d 894, 898.) Here, the languageis unambiguous:the right to file a peremptory challenge does not extend to 15 any proceeding;to the contrary, section 170.6 specifically limits the types ofproceedings to whichit applies. To the extent there is any ambiguity in the statute, it extends only to whether an all-purpose assignment under subdivision (a)(2) creates a third class of applicable proceeding, or whether it simply further defines the categories of trials and contested matters of law and fact. | Hence, the question before this court is not whether a habeas proceeding constitutes a special proceeding; it does. (People v. Villa (2009) 45 Cal.4th 1063, 1069.) Instead, the question is whether the merefiling ofa habeaspetition satisfies the requirement ofeither a trial or a hearing on a contested issue oflaw orfact, and potentially the further question of whether the judge assigned to decide the petition constitutes an all-purpose assignment. To answer these questions,it is necessary to discuss the nature of habeas corpus proceedings as well as all-purpose assignments. D. The MereFiling of a Habeas Petition Does Not Establish a Right to Trial or Give Rise to Contested Issues of Law or Fact A habeas corpus proceedingis a collateral attack upon a criminal judgment, which is presumed to be valid because ofsocietal interest in the finality ofjudgments. (/n re Sanders (1999) 21 Cal.4th 697, 703; People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall); In re Clark (1993) 5 Cal.4th 750, 764 (Clark); People v. Gonzalez (1990) 51 Cal.3d 1179, 1260 (Gonzalez).) “Because a petition for writ of habeas corpusseeksto collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burdeninitially to plead sufficient groundfor relief, and then later to prove them.” (Duvall, supra, 9 Cal.4th at p. 474.) ““A habeas corpus proceeding begins with the filing of a verified petition for a writ of habeas corpus.” (People v. Romero (1994) 8 Cal.4th 728, 737 (Romero).) But the filing of the petition is only the beginning;it is 16 simply the meansthat initiates the process: “[T]he petition serves primarily to launch the judicial inquiry into the legality of the retrain on the petitioner’s liberty... .” Ud. at p. 738.) “When presented with a petition for a writ of habeas corpus, a court mustfirst determine whetherthe petition states a prima facie case for relief—that is, whetherit states facts that, if true, entitle the petitioner to relief-and also whetherthe stated claims are for any reason procedurally barred.” (/d. at p. 737; Clark, supra, 5 Cal.4th at p. 769, fn. 9.) “If the court determinesthat the petition does not state a primafacie case for relief or that the claimsare all procedurally barred, the court will deny the petition outright, such dispositions being commonly referred to as ‘summary denials.’” (Romero, supra, 8 Cal.4th at p. 737; In re Clark, supra, 5 Cal.4th 750, 769, fn. 9, 781). When, on the other hand, a habeas corpuspetition is sufficient on its face, the court must issue a writ of habeas corpus “without delay.” (Pen. Code, § 1476; Romero, supra, 8 Cal.4th at pp. 737-738; Duvall, supra, 9 Cal.4th at p. 475.) “The function of the writ or order [to show cause]is to ‘institute a proceeding in which issues of fact are to be framed and decided.’” (Romero, supra, 8 Cal.4th at p. 740, quoting In re Hochberg (1970) 2 Cal.3d 870, 876, fn. 4.) The petition itself creates no cause or proceeding that would confer jurisdiction. (People v. Gonzalez, supra, 51 Cal.3d atp. 1258). “The issuance ofeither the writ of habeas corpusorthe order to show cause creates a “cause,” thereby triggering the state constitutional requirementthat the cause be resolved ‘in writing with reasonsstated’ * As an alternative to requiring the custodian to bring the prisoner physically before the court, courts sometimes use the substitute of an order to show cause whyrelief should not be granted instead of granting the writ. (Romero, supra, 8 Cal.4th at p. 738.) 17 [citations].” (Romero, supra, 8 Cal.4th at p. 740.) “As the means by which a judicial proceedingis instituted, the issuance of the writ (or order to show cause) is mandatory, not optional.” (Romero, supra, 8 Cal.4th at p. 740.) A court cannot grant relief without first issuing the writ (or order). (/d. at p. 734.) Yet, issuance of the writ or an OSCindicates nothing more than the “court’s preliminary assessmentthat the petitioner would be entitled to relief if his factual allegations are proved.” (Duvall, supra, 9 Cal.4th atp. 475.) It is only thefirst step. Once a writ or order to show cause hasbeenissued, the person having custody overthe petitioner mustfile a return, which mustallege facts establishing the legality of the petitioner’s custody. (Romero, supra, 8 Cal.4th at p. 738; Pen. Code, § 1480.) The return becomesthe “principal pleading””; it is “‘analogous to the complaintin a civil proceeding,’” and “is an essential part of the scheme’ by whichrelief is granted in a habeas corpus proceeding.” (Romero, supra, 8 Cal.4th at p. 739; Duvall, supra, 9 Cal.4th at p. 477, fn. 4.) It is for this reason that a return containing only general denials is deficient becauseit fails to narrow the facts and issues to those that are in dispute. (Duvall, supra, 9 Cal.4th at p. 480.) The petitioner, in turn, mustfile a traverse. While the traverse may incorporate allegations from the petition, any allegation of the return not controverted by the traverse is deemed admitted. (Romero, supra, 8 Cal.4th at p. 739; In re Lewallen (1979) 23 Cal.3d 274, 277 (Lewallen).) The traverse is therefore analogousto the answerin a civil proceeding. (Duvall, supra, 9 Cal.4th at p. 478, fn. 4; Romero, supra, 8 Cal.4th at p. 739; In re Saunders (1970) 2 Cal.3d 1033, 1037.) “In this relatively uncomplicated mannerboth factual and legal issues are joined for review.” (Lewallen, supra, 23 Cal.3d at p. 278; see also Duvall, supra, 9 Cal.4th at p. 477 [“interplay” between return and traverse “frames the factual issues that the court must decide”’].) If the factual allegations in the return are so 18 inadequate that the petitioner cannot answer them,the petitioner may “except” (Pen. Code, § 1484) to the sufficiency of the return ““‘in a procedure analogous to demurrer.’” (Duvall, supra, 9 Cal.4th at p. 477, quoting Jn re Saunders, supra, 2 Cal.3d at p. 1048.) While the court may request an informal response from the petitioner's custodian or the real party in interest to assist the court in determining the sufficiency ofthe petition before issuing an OSC,the purposeof such an informal responseis decidedly different from a return. (Romero, supra, 8 Cal.4th at p. 737.) Even though the informal response performs a screening function and mayinvolvethecitation to legal authority or even submission of factual materials, unlike the return, an informalresponseis not a pleading; it does not frame or join issues and does notestablish a cause. (/d. at p. 741-742.) It is for this reason that a court may grant a habeascorpuspetitionerrelief only after issuance of an order to show cause or a writ of habeas corpus. (Romero, supra, 8 Cal.4th at p. 744.) It follows that until a court grants the writ or issues an OSC,there are no contested issues of law of fact within the meaning of section 170.6. Until that time, there is no “cause” (Romero, supra, 8 Cal.4th at p. 740), and, therefore, there can be no contested issues. Indeed, the People may choosenot to contest the petition at all. (Saunders, supra, 2 Cal.3d at p. 1048 [Whenthe return effectively acknowledges or ‘admits' allegations in the petition and traverse which,iftrue, justify the relief sought, such relief may be granted without a hearing onthe other factual issues joined by the pleadings.”]) Even when the People file an informal response, that document is most analogous to a demurrer, and as previously noted, for the past half century courts have interpreted section 170.6 as not applying to demurrers. (Fightfor the Rams v. Superior Court, supra, 41 Cal.App.4th at p. 957; Zdonek v. Superior Court, supra, 38 Cal.App.3d at pp. 852-853.) 19 This must certainly also be the case at an earlier stage where the petitioner has simply filed his petition and the People have not responded in any fashion. In deciding whether a habeaspetition states a primafacie case, “the judge does not pass upon or determine issues of fact but rather decides whethera triable issue of fact exists.” (Bambula v. Superior Court, supra, 174 Cal.App.3d at p. 657 [motion for summary judgmentis not a determination of contested fact issues].) Hence, in the context of a habeas petition, there can be no contested issue of fact or law for purposes of section 170.6 until after the court has issued the writ or an OSC. Maasasserts that the decision as to whethera petition states a prima . facie case involves contested issues of law and fact. (ABOM 16-17.) But he does not support this naked assertion with any authority. He failsto _ recognize that at this stage the judge must acceptthe allegations of the petition as true, and therefore there is no more a contested issue of law or fact than in the case of a demurrer. For similar reasons, the determination of whether a habeaspetition states a prima facie case obviously does not involvea trial. Notably, Maas does not contend otherwise. Only after the issues have been joined through the issuance of the writ and the filing of a return and traverse does the court determine whetheran evidentiary hearing is needed. (Romero, supra, 8 Cal.4th at p. 739; Pen. Code, § 1484.) A court may grant or denyrelief without the need to conduct such a hearing, where, for instance, a party’s admissions or the matters of record are dispositive. (Romero, supra, 8 Cal.4th at p. 739.) “[I]f the return and traverse reveal that the petitioner’s entitlementto relief hinges on the resolution of factual disputes, then the court should order an evidentiary hearing.” (/d. at pp. 739-740.) Simply deciding whethera petition states a prima facie case is not a trial of any kind. 20 Thus, the merefiling of a habeas petition, without more, does not satisfy either of the conditions under section 170.6, subdivision (a)(1). The petition simply initiates the habeas proceeding. There is no contested cause until the court determinesthepetition is not subject to summary denial and issues a writ or OSC, which requiresthe partiesto file formal pleadings. Undersection 170.6, subdivision (a)(1), a petitioner therefore has noright to challenge the judge who determines whetherthe petitioner has stated a primafacie case for relief. The Court of Appeal’s rule improperly expanded the reach of section 170.6 to include any “matter” even whenit is not a contested cause. E. Habeas Petitions Are Not Assigned to a Judge for All Purposes, At Least Before the Issuance of a Writ Or OSC Although Maas does not contend otherwise, for purposes of completenessit is worth noting that to the extent the all-purposerule in subdivision (a)(2) establishes a third category of cases subject to peremptory challenge, it too does not apply in the context of habeas proceeding before the issuance of a writ. Section 170.6, subdivision (a)(2), “does not explain when an assignmentto a judge may be deemed oneforall purposes.” (Lavi, supra, 4 Cal.4th at p. 1179.) The purpose of such an Seassignmentis “‘the pragmatic value of havingall matters arising in a complicated and potentially long drawn-out case to be heard by one judge, so that the time oflitigants, counsel and the superior court need not be wasted in the repetitive education of successive judgesin the intricacies of that kind of case.’” ([bid., quoting Zdonek v. Superior Court, supra, 38 Cal.App.3d at p. 856.) This court has established two minimum prerequisites for a case assignmentto be considered anall purpose one:(i) “the method of assigning cases must ‘instantly pinpoint’ the judge whom the parties can expect to ultimately presideat trial’; and (ii) “that same 21 judge must be expectedto processthe case ‘in its totality’ [citation], from the time of the assignment, thereby ‘acquiring an expertise regarding the factual and legal issues involved, which will accelerate the legal process.’” (Lavi, supra, 4 Cal.4th at p. 1180, fns. omitted.) At least prior to the issuance of a writ or OSC, a habeas matter does not qualify as an all-purpose assignment. First, a contrary conclusion would be at odds with rules of habeas procedurethis court has previously established. In Griggs v. Superior Court (1976) 16 Cal.3d 341, this court adopteda series of rules to be followed by superior courts in exercising their unlimited jurisdiction in habeas corpuscases. Asaninitial matter, whena court is presented with a habeaspetition, the court must determine whetherthe petition states a prima facie case. “If the petition states a prima facie case for relief, then the court must determine whetherit will hear the matter on the merits.” (Id. at p. 347, italics added.) Hence, this court has already anticipated that the court that initially determines whether petition states a prima facie case will not inevitably be the same court that retains the matter for all further proceedings. Notably,“[i]f the challengeis to a particular judgment or sentence, the petition should be transferred to the court which rendered judgmentif that court is a different court from the court wherein the petition wasfiled. . . .”bid.) Alternatively, “[i]f the challenge is to conditions of the inmate’s confinement, thenthe petition should be transferred to the superior court of the county where the inmate is confinedif that court is a different court from the court whereinthe petition wasfiled.” (/bid.) As a generalrule, a court mayalso properly transfer a case where an evidentiary hearing is necessary and the persons who would participate in that hearing are more efficiently available to another court or another court is better suited to conduct the hearing. (/bid.) Hence, accordingto therules already set forth in Griggs, it cannot be said that the 22 same judge would be “expected”to process the casein its totality from the time ofthe assignment. (Lavi, supra, 4 Cal.4th at p. 1180.) Second, even aside from the conflict between the rules of habeas procedure andthe definition ofan all-purpose assignment, a habeas proceeding simply does notfit within the policies that motivate suchall- purpose assignments. Habeas matters as a whole are not uniquely complicated or drawn-out. This is especially true atthe initial pleading stage where manypetitioners file in pro per andthe petitions are routinely denied. Suchpetitions stand in sharp contrast to complexlitigation, for instance, that involves “‘multiple related cases, extensive pretrial activity, extendedtrial times,difficult or novel issues, and postjudgment judicial supervision’”and which therefore “typically ‘should be assigned to one judge for all purposes.’” (Lavi, supra, 4 Cal.4th at p. 1180, quoting Cal. Stds. Jud. Admin, § 19, subds.(c), (d) [23 West’s Cal. Codes Ann. Rules, pt. 2 (1992 supp.)] p. 392.) Finally, the all-purpose assignmentprovisions in section 170.6, subdivision (a)(2), anticipate a challenge directed to a “trial” of either a civil or criminal“cause.” But at least before the issuance of an OSC ora writ, a habeas proceeding is not a cause (Romero, supra, 8 Cal.4th atp. 740; People v. Gonzalez, supra, 51 Cal.3d at p. 1258), and as noted above, it does not involvea trial. Accordingly, assuming section 170.6 applies to all-purpose assignments that do not otherwisesatisfy subdivision (a)(1) of that section, a habeas case wouldstill not qualify before an OSC orwrit has issued. Notably, Maasdoesnot claim his petition constituted an all-purpose assignment. 23 F. Case Law Interpreting Section 170.6 in the Habeas Context Comports With the Requirement That a Peremptory Challenge May Be Made Only After a Writ or OSC HasIssued Although section 170.6 was first codified over a half century ago (Stats. 1957, ch. 1055, § 1, p. 2288), Maascites no other case, and respondentis not aware of any, that has permitted a peremptory challenge before the issuance of a writ or OSC. At least one court, however, has held that after the Court of Appeal issues an OSC returnable to the superior court, the habeas proceedingis properly considered a continuation of the underlying criminal action, and as such the petitioner’s challenge to the original trial judge would be untimely, because it was not madebeforethe earlier trial commenced. (Yokley v. Superior Court (1980) 108 Cal.App.3d 622, 624 (Yokley).) The Yokley court reasonedthat, like a contempt proceeding or a revocation of probation, an order to show cause in a habeas matter involves “<“substantially the same issues”as the original action’” and should therefore beconsidered a continuation ofthat original action. (/d. at p. 626.) Analogizing to situations in which the Court of Appeal remands a matter to the superior court for further proceedings, such as to decide the voluntariness of a confession or the fairness of a photo lineup, the Yokley court concluded that a peremptory challenge under section 170.6 should also not be available in the habeas context. (/d. at p. 627.) While the court recognized there may be somedissimilarities with such remands (because a habeas OSC can bereturnable before any superior court judge or even a referee), the court reasonedthat “[a]bsent a disqualification for cause, ..., there is no judge better suited for making a determination ofthe issues raised in petitioner’s petition than the original trial judge.” (dd. at p. 628.) Hence,the court in essence concluded that the habeas OSC should not be treated as a new proceeding, because, as a practical matter, to do so would 24 allow the defendantto avoid thetrial judge who was most familiar with the underlying facts and best situated to rule onthe petition. In dictum, the Yokley court suggested that in othersituations involving various types of remand,if a judge who had notpreviously participated in the matter was assigned, courts had allowed the parties to exercise a peremptory challenge against the new judge. (/d.at p. 627, citing People v. Smith (1962) 196 Cal.App.2d 854 and Lyons v. Superior Court (1977) 73 Cal.App.3d 625.) However, because the sametrial judge had been assigned to hear the habeaspetition, this potential rule did not apply in that case. ([bid.) Seeking to capitalize on the Yokley dictum, Maasnotes that beginning with Jacobs v. Superior Court (1959) 53 Cal.2d 187, this court first recognized the generalrule that when a proceedingis in essence a continuation ofan earlier related proceeding, a party may not disqualify the trial judge because the motion would be untimely. (/d. at p. 190.) This court reasonedthat a contrary rule would allow the party to disqualify the judge most familiar with the facts in the hope of obtaining a more favorable judgment. (/d. at p. 191.) As the Yokley court noted, the Court of Appeal in Smith seized uponthe reason for the Jacobsrule to distinguish that case and permit motions under section 170.6 where the related proceedings involved different judges. (People v. Smith, supra, 196 Cal.App.2d at pp. 859-860 [probation hearing by judge with no prior connection to case].) Maas argues that this court should likewise apply a similar rule here, because there is no risk that he wastrying to judge shop or cause undue delays. (ABOM 15.) Yokley does not assist Maas for several reasons. Aboveallelse, that case involved habeas proceedings after an OSC hadbeen issued. That distinction is critical because without a cause, there are no contested issues of law or fact. The merefact that habeas proceedingsare related to the underlying criminal action does not obviate these unambiguousstatutory 25 requirements of section 170.6, subdivision (a)(1). As previously discussed, Maas’s contention that a pre-cause decision as to whether a habeaspetition states a prima facie case also involves contested issues of law andfact (ABOM 16) is simply unsupported. Consequently, it is unnecessary for this court to decide the merit of Yokley’s dictum that a peremptory challenge would be available if the habeas proceeding involveda different judge. That rule would only apply, if ever, once there is a cause. Nevertheless, it is worth noting that the express language of section 170.6, subdivision (a)(2), provides that “[i]n no event” shall the motion be considered timely “after trial of the cause has otherwise commenced.” Hence,if the habeas proceeding is seen as a continuation of the underlying criminaltrial, then the motion would be untimely. There is no reason for this court to go beyondthe statutory language to examine the supposed purposes behind the rule. However, as discussed further below,to the extent this court chooses to do so, policy considerations establish that a section 170.6 challenge should not be permitted before a writ or order to show cause hasissued. G. Policy Considerations Militate Against Allowing a Section 170.6 Challenge Before an OSC or Writ Has Issued Setting aside the explicit requirements of section 170.6, policy considerations disfavor permitting a peremptory challenge until after a order to show cause hasissued. Theinitial goal of reviewing a petition even before the People have made an appearanceis to enable the superior court to cull out those petitions that are subject to summary denial from those that have potential merit. The need to expeditethis initial review and avoid unnecessary delay is self-evident. (See Pen. Code, § 1476 [a court must issue the writ “without delay.”].) It is equally clear that entitling habeas petitioners to file peremptory challengesat this initial stage would only 26 serve to underminethese goals. (Cf. Fry v. Superior Court (2013) 222 Cal.App.4th 475, 483 [noting that “fast-moving departments” such as writs and receivers often process cases in days rather than weeks and may expend substantial judicial resources while an undirected peremptory challenge works its way throughthe clerk’s office].) Indeed, like the policy concerns that motivated the 1965 amendments to section 170.6, construing that provision as applying to habeas proceedings only after a writ or OSC has issued would conservejudicial resources in the smaller counties, reduce the numberofdisqualification motions statewide, and preserve the motion for situations in which important fact determinations are involved, such astrials. (See AbdulY., supra, 130 Cal.App.3d at p. 858, citing Report of the Committee on Administration of Justice (1964) 39 State Bar J. 496, 498.) In order to comply with the Court of Appeal’s rule in the present case, a superior court would first have to determine whotheoriginaltrial judge was—a matter that could be made more complicated if there was more than one judge, for instance at sentencing.If that judge is different than the judge assignedto the habeaspetition, then it would be necessary to determine further whetherthe petitioner previously executed a peremptory challenge in the underlying criminal matter. Because the habeas proceeding is a continuation of the original criminal matter (Yokley, supra, 108 Cal.App.3d at pp. 626-628), the petitioner wouldnot be able to challenge a new judgeifthe petitioner or a co-defendant had previously exercised a challengein the criminal case. (§ 170.6, subd. (a)(4)) [“Except as provided in this section, no party or attorney shall be permitted to make more than one such motion in any one action or special proceeding pursuantto this section.”]; see Pappa v. Superior Court (1960) 54 Cal.2d 350, 353 [no additional challenges could be madeonretrial because both sides had made section 170.6 challengesin the first trial].) But at this stage of the collateral 27 proceedings, it may not be clear whetherthe petitioner made a prior challenge. Unless the habeaspetitioner happens to volunteer such information (andit is not required on the standardized habeas form), a court clerk or a presiding judge would have no way of knowing whether a petitioner has an available peremptory challenge without searching the court records from the criminal matter. As the facts of the present case suggest, where there was a 15-year hiatus between the criminal sentencing and the filing ofthe petition, this determination may be noeasytask. Assuming it could be determined that the petitioner had not previously executed a peremptory challenge, the court would be unable to act on the petition while it sends notice of the assignmentto the petitioner and waits some amountoftimefor the petitioner to respond. Just how long that waiting period would be, remains unclear. As previously noted, section 170.6, subdivision (a)(2), provides a lengthy list of times in which the challenge must be made depending uponthe type of proceeding. Habeas corpus proceedingsare notlisted, let alone proceedings before an OSC.But regardless of which time deadline would apply, presumably the court would haveto add an additional period to accountfor the time it would take to mail the notice to the petitioner and provide an opportunity to receive a response. Thus, the Court of Appeal’s rule would necessarily delay the initial determination of whether further proceedings are necessary, or whetherinstead the petition should be summarily denied. Nor would the Court of Appeal’s rule benefit habeaspetitioners as a whole. A habeaspetitioner standslittle to gain by challenging the judge assigned to determine whetherhis or her petition states a prima faciecase. Maaspoints outthat if the petition is denied in the superior court, then he could not re-file the samepetition in that court. (ABOM 19.) Butif the petitioner believed the superior court judge wrongfully deniedthe petition as a result of bias, the petitioner could alwaysseekrelief in either the Court 28 of Appeal or this court. (Cal. Const., art. VI, § 10 [granting Supreme Court, courts of appeal and superior court original jurisdiction in habeas matters]; Romero,supra, 8 Cal.4th at p. 737; In re Crow (1971) 4 Cal.3d 613, 621, fn. 8.) Because the determination of whetherthe petition states a prima facie caseis a question of law, the reviewing court would not be bound by the prior ruling of the superior court. (See Jn re Serrano (1995) 10 Cal.4th 447, 457; Inre Rosenkrantz (2002) 29 Cal.4th 616, 677; cf. In re Stevenson (2013) 213 Cal.App.4th 841, 857 [“*When a superior court grants relief on a petition for habeas corpus without an evidentiary hearing, ... the question presented on appeal is a question of law, which the appellate court reviews de novo.’”]; In re Borlik (2011) 194 Cal.App.4th 30, 35 [“‘when the lower court reaches a decision based on the pleadings and attached exhibits, . . . , we independently review the record.”].) On the other hand, the Court of Appeal’s rule is not without detriment to the petitioner. Granting habeaspetitioners the right to file a peremptory challenge before a court has even issued an OSC would meanthat petitioners not only can raise such a challenge, but also that they must do so or otherwise forfeit that right. (See Gant v. Superior Court, supra, 90 Cal.App.4th at p. 525 [an otherwise timely peremptory challenge must be denied if the judge has presidedat an earlier hearing which involved a determination of contested factual issues relating to the merits].) And if the petitioner uses the peremptory challengeat this early stage, he or she would generally be precluded from making any additional challenge should the proceedings continue undera different assigned judge. (§ 170.6, subd. (a)(4).) Considering the fact that many, if not most, habeaspetitioners do not have the advantage of counsel before an OSC orwrit has issued, either the useor forfeiture of the right would likely occur before the petitioner has received legal advice. In the presentcase, for instance, the Court of Appeal appointed counsel onlyafter it issued an OSC. Thus, as a general matter, 29 petitioners would receive greater benefit by being able to wait until after the writ or OSC hasissued. Maasurgesthat there would be no danger of forum shoppingin his case, because the judge whoruled on the habeaspetition was different than the judges whopresidedat trial. (ABOM 18.) But at most this simply points to the absence of one potential reason for not allowing the challenge;it would not provide an affirmative reason for permitting it. As discussed above, even if Maas could escape the clear language of the statute, there are many otherpolicy reasons for not permitting a challenge prior to the issuance of an OSC. Positing that in the vast majority of cases the trial judge in the original criminaltrial would also rule on the habeas matter, Maas asserts that the Court of Appeal’s rule would not be difficult to implement and would also not waste judicial resources. (ABOM 20.) But Maassimply begsthe question. As previously discussed,it does not follow that the court that entered judgment, and which should ordinarily hear the matter once a cause has issued, will inevitably be the same court that determines whether a primafacie case has beenstated. (See Griggs v. Superior Court, supra, 16 Cal.3d at p. 347.) Further, as for judicial resources, Maas apparently discounts the costs of determining whotheoriginal trial judges were and whetherthe petitioner had previously executed a peremptory challenge in any of the prior proceedings, not to mention the additional delay in notifying the petitioner as to the assigned judge. Accordingly, allowing a peremptory challenge before the issuance of an OSC or writ would be contrary to the plain language of section 170.6, the procedural rules governing habeas corpus proceedings, and the public _ policies behind both. 30 CONCLUSION Forthe reasonsstated above, respondent respectfully requests this court reverse the judgmentof the Court ofAppeal granting the writ of mandate and remand the matterto allow the Court of Appeal to address the merits of the petition for writ of habeas corpus. Dated: September 25, 2015 Respectfully submitted, KAMALAD.HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General GERALD A. ENGLER Chief Assistant Attorney General LISE S. JACOBSON . Deputy Attorney General TEVE OETTING Deputy Solicitor General Attorneysfor Respondent SO:Ib/ode $D2015800797 71125049.doc 31 CERTIFICATE OF COMPLIANCE I certify that the attached ANSWERING BRIEF ON THE MERITS uses a 13 point Times New Romanfont and contains 9,227 words. Dated: September 25, 2015 KAMALAD. HARRIS A ey General of California ,Me STEVE OETTING Supervising Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICEBY U.S. MAIL & ELECTRONIC SERVICE Case Name: In re MICHAEL EUGENE No.: S225109 MAASon Habeas Corpus I declare: I am employedin the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing withthe United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. The Office of the Attorney General’s eService address is AGSD.DAService@doj.ca.gov. On September 28, 2015, I served the attached: ANSWERING BRIEF ON THE MERITSby placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid,in the internal mail collection system at the Office of the Attorney General at 600 West Broadway, Suite 1800, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Hon. John M. Thompson Fourth Appellate District, Division One c/o Clerk of the Court Court of Appeal ofthe State of California San Diego County Superior Court Symphony Towers 250 E. Main Street 750 B Street, Suite 300 El Cajon, CA 92020 San Diego, CA 92101 and, furthermoreI declare, in compliance with California Rules of Court, rules 2.251(i)(1)(A)- (D) and 8.71(£)(1)(A)-(D),I electronically served a copy ofthe above document on September 28, 2015, by 5:00 p.m., on the close of business day to the following. eservice-criminal@adi-sandiego.com da.appellate@sdcda.or ‘Appellate Defenders, Inc.’s San Diego District Attorney’s Office russbab@gmail.com Appellant’s Attorney I declare underpenalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on September 28, 2015, at San Diego, California. O. de la Cruz © Qe Qe Cru, Declarant Signature . J $D2015800797 71127837.doc