Full Opinion

Filed 10/13/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, B353018 Petitioner, (Los Angeles County Super. Ct. No. 25CJCF05572) v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, GIOVANNI GARCIA, Real Party in Interest. ORIGINAL PROCEEDINGS; petition for writ of mandate. Yvette Verastegui, Judge. Petition granted. Nathan J. Hochman, District Attorney, Matthew Brown, Elizabeth Marks and Jeffrey Herring, Deputy District Attorneys, for Petitioner. No appearance for Respondent. Ricardo D. Garcia, Public Defender, Albert J. Menaster, Ann-Yu Wang, Michael Pentz and Lisa Zimmerman, Deputy Public Defenders, for Real Party in Interest. ****** This writ petition filed by the People of the State of California (People) challenges a trial court’s rejection of a timely motion to disqualify under Code of Civil Procedure section 170.6. 1 The People moved to disqualify a criminal master calendar department judge who offered the defendant an indicated sentence and then accepted the defendant’s guilty plea over the People’s objection. The trial court in those circumstances did not function as a master calendar court and heard a matter that involved a contested issue of law or fact. The trial court was required to accept the section 170.6 challenge. (Lorch v. Superior Court (2024) 101 Cal.App.5th 1266, 1274 (Lorch).) We therefore issue a peremptory writ of mandate directing the trial court to vacate its orders denying the section 170.6 motion and accepting the defendant’s plea and to assign the case to a different judge. BACKGROUND I. Parties The People are the plaintiff in the underlying criminal case at issue, Los Angeles Superior Court case No. 25CJCF05572. Real party in interest Giovanni Garcia is the defendant in that case. II. Procedural history The People filed an information on January 2, 2026, charging Garcia with one felony count of driving or taking a 1 All further statutory references are to the Code of Civil Procedure unless stated otherwise. 2 vehicle without consent, in violation of Vehicle Code section 10851, subdivision (a). The information alleged that Garcia had three prior strike convictions for robbery (Pen. Code, § 211) and had served a prior prison term within the meaning of California Rules of Court, rule 4.421(b)(3). On January 30, 2026, Judge Laura Priver in department 125 of the Clara Shortridge Foltz Criminal Justice Center ordered the case transferred to Department 100 for trial assignment. Department 100 functions in part as a felony master calendar court, where felony cases are assigned to an available courtroom for trial. The minute order transferring the case to department 100 states that Garcia’s potential maximum sentence was six years, the People’s offer was 32 months, and Garcia’s counteroffer was a grant of probation. On February 27, 2026, the matter was called in department 100 where Judge Yvette Verastegui presided. Before Judge Verastegui assigned the case to another courtroom for trial, Garcia’s counsel asked for an indicated sentence. The matter was continued to March 2, 2026, and Judge Verastegui advised the parties that she would consider Garcia’s request on that date. On March 2, 2026, the People filed a section 170.6 motion to disqualify Judge Verastegui. The court clerk did not accept the filing but wrote “REJECTED BY COURT 3/2/26” on the document. At the March 2, 2026 hearing, Judge Verastegui ruled that a section 170.6 challenge could not be brought against a master calendar judge, whose sole function is to assign cases to an available department for trial. Citing People v. Clancey (2013) 56 Cal.4th 562 (Clancey), Judge Verastegui further stated that providing an indicated sentence did not require the court to rule 3 on any disputed question of fact or law and did not require the prosecutor’s consent. After Judge Verastegui rejected the section 170.6 challenge, Garcia again requested an indicated sentence. Judge Verastegui said she had reviewed the information, preliminary hearing transcript, and probation report but requested additional information from the People about Garcia’s prior strikes. The People responded that Garcia had been convicted of three separate robberies in 2008 and had served a 15-year prison sentence. The People explained that Garcia’s previous case had included charges for nine robberies, two of which involved firearms, and the filing notes indicated that Garcia had committed 15 robberies from April 2008 to May 2008. The robberies had targeted game stores, Blockbuster Video, and Radio Shack, where Garcia stole merchandise, twice at gunpoint. Garcia was released on parole on January 12, 2023, two years before his current case. The People said they had offered Garcia the low term of 16 months, doubled to 32 months because of the prior strikes. At the court’s request, defense counsel then offered evidence in mitigation related to the prior strikes, Garcia’s employment history, his family life, and that his current offense was a lower level felony. Defense counsel referred the court to the probation report describing the facts underlying Garcia’s current offense— that he was found asleep in the vehicle after returning home from work. The trial court stated it would exercise its discretion to strike Garcia’s prior strike convictions based on Garcia’s relatively young age at the time of the offenses, the time elapsed since his conviction, and because his current offense was not a 4 serious or violent felony. The court then gave an indicated sentence of 16 months. Defense counsel said Garcia would accept the indicated sentence. The People renewed their peremptory challenge, arguing that the court’s taking of an open plea came within the parameters of section 170.6. The trial court again rejected the People’s challenge. The trial court advised Garcia of his rights and accepted his waivers. The court found Garcia knowingly, intelligently, and expressly waived his constitutional and statutory rights, freely and voluntarily entered the plea, and that a factual basis existed for the plea. The court then accepted Garcia’s plea but continued sentencing to allow the People to seek writ review. On March 11, 2026, the People filed a petition for writ of mandate directing the superior court to vacate Garcia’s March 2, 2026 plea and to accept and grant the section 170.6 motion to disqualify Judge Verastegui. On April 27, 2026, this court granted the People’s request to stay the trial court proceedings pending resolution of their writ. On June 1, 2026, this court issued a notice pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, commonly referred to as a Palma notice, stating it had considered the petition for writ of mandate and was considering issuing a peremptory writ directing the superior court to grant the relief sought by the People. The order further stated that the superior court could avoid issuance of a peremptory writ by entering an order vacating Garcia’s March 2, 2026 plea and granting the People’s section 170.6 challenge. The superior court elected not to proceed as this court suggested. Garcia filed a plenary opposition to the People’s writ petition, and the People filed a reply brief. On July 15, 2026, 5 Garcia filed a letter brief requesting modification of this court’s April 27, 2026 stay order to allow the superior court to consider a motion for bail. This court denied that request and issued an order stating it would treat its previously issued Palma notice as an order to show cause and set the matter for oral argument. DISCUSSION I. Applicable law and standard of review Section 170.6 permits a party in a criminal or civil action to move to disqualify a superior court judge, commissioner, or referee for prejudice. The statute, as relevant here, states: “A judge, court commissioner, or referee of a superior court of the State of California 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 as provided in this section that the judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” (§ 170.6, subd. (a)(1).) An order denying a motion to disqualify a judge is not an appealable order and may be reviewed only by way of a petition for writ of mandate. (§ 170.3, subd. (d).) If a motion to disqualify under section 170.6 is timely and in proper form, “‘disqualification of the judge is mandatory, without any requirement of proof of facts showing that the judge is actually prejudiced.’” (Lorch, supra, 101 Cal.App.5th at p. 1274.) “By enacting section 170.6, the Legislature guaranteed litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice ….” (Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 62.) Section 170.6 “must be liberally construed in favor of allowing a peremptory challenge, 6 and a challenge should be denied only if the statute absolutely forbids it.” (Lorch, at p. 1274.) “Trial courts have no discretion to deny a section 170.6 challenge filed in compliance with the statute’s procedures.” (Ibid.) Because a trial court exercises no discretion when considering a section 170.6 peremptory challenge, we review de novo a decision granting or denying such a challenge. (Lorch, supra, 101 Cal.App.5th at p. 1274; Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987–988.) The trial court erred by refusing the People’s peremptory challenge under section 170.6. The challenge was timely and in proper form, was not directed at the court in its capacity as a master calendar court and preceded the hearing of a matter involving a contested issue of law or fact. It is undisputed that the People’s section 170.6 motion was timely and in proper form. The motion did not seek to disqualify Judge Verastegui in her capacity as a master calendar judge. That department 100, in which Judge Verastegui presides, is designated as a “master calendar court” is not conclusive. (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1174.) The primary duty of the master calendar judge is to assign “a ‘ready case … to a ready department.’” (Id. at p. 1175, quoting People v. Escobedo (1973) 35 Cal.App.3d 32, 38.) Judge Verastegui did not act as a master calendar court. (See Lavi, supra, at p. 1174.) Rather, she acted outside the scope of a master calendar court’s ministerial duties by accepting Garcia’s plea following disclosure of an indicated sentence that included dismissal of his prior strike convictions. A trial court in a criminal case may at an early stage provide the parties with an indicated sentence based on the 7 record then available. (Clancey, supra, 56 Cal.4th at p. 575.) “[T]he indicated sentence must be the same punishment the court would be prepared to impose if the defendant were convicted at trial.” (Ibid.) When providing an indicated sentence, a trial court may also invoke its statutory authority under Penal Code section 1385 to dismiss a prior strike allegation. (Clancey, at pp. 582– 583.) An indicated sentence is not a plea bargain, and unlike plea bargains, prosecutorial consent is not required. (People v. Smith (2014) 227 Cal.App.4th 717, 730.) A court may therefore indicate a sentence to a defendant without interference from the prosecutor, except that the prosecutor may argue against that sentence. The prosecutor has the “inherent right to challenge the factual predicate and to argue that the court’s intended sentence is wrong.” (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276.) Pursuant to an indicated sentence, a defendant may plead guilty to all charges and admit all allegations in the information. The trial court may then accept the defendant’s plea and admissions. All that remains thereafter is the pronouncement of judgment and sentencing. (People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909, 914.) The trial court’s dismissal of a prior strike allegation and acceptance of a defendant’s guilty plea following an indicated sentence is subject to a motion to disqualify under section 170.6. Section 170.6, subdivision (a)(1) authorizes a peremptory challenge to a judge who hears “any matter therein that involves a contested issue of law or fact.” That language is “expansive … suggesting the Legislature intended the scope of the statute to be all encompassing.” (Lyons v. Superior Court (1977) 73 Cal.App.3d 625, 627 (Lyons).) 8 A decision whether to strike or vacate a prior serious and/or violent felony conviction allegation involves contested issues of law or fact within the meaning of section 170.6, subdivision (a)(1). (See People v. Braley (2020) 52 Cal.App.5th 680, 687 [decision whether to strike or dismiss enhancement is bound to involve a “‘contested issue of law or fact’”].) When deciding whether to dismiss a prior “strike” allegation, a court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The essential question is whether the defendant falls outside the spirit of the “Three Strikes” law. (Williams, at p. 161.) That determination involves issues of law or fact. (Braley, at p. 687.) Those issues were contested here, as is evidenced by the People’s objections in the trial court below. Acceptance of a plea similarly involves contested issues of law within the meaning of section 170.6. (See Lyons, supra, 73 Cal.App.3d at p. 627.) The court in Lyons discussed the issues of law a court must determine when accepting a plea resulting from a plea bargain: “[T]here are numerous questions of law that may have to be determined by the court in deciding whether or not to accept the plea bargain. For example, whether or not the plea was made freely and has a basis in fact [citation] or whether the public interest would be served … or whether the plea, if it is not to the offense charged, is to a lesser offense reasonably related to 9 the offense charged [citation] all potentially involve contested issues of law.” (Ibid.) The Lyons court then explained when contested issues of law may arise: “While the issues may not be disputed between the prosecution and the defense, there may well be a conflict between the defense and the court over these matters. If the judge questions whether the public interest would be served by accepting the plea, there would appear to be a contested issue just as much as if the conflict was between the prosecution and the defense. The purpose of the statute, to prevent a judge who one of the parties feels may be biased from ruling on an issue, would appear to be implemented by applying the statute to these situations.” (Lyons, supra, 73 Cal.App.3d at p. 628.) The circumstances here provide more compelling support for disqualification under section 170.6 than those in Lyons, where the prosecution and the defendant were in agreement, but potential conflict existed between the defendant and the court. Here, there was actual conflict not only between the prosecution and the defendant but also between the prosecution and the trial court. The trial court’s acceptance of Garcia’s guilty plea was the functional equivalent of a trial for purposes of section 170.6. (See Smith v. Municipal Court (1977) 71 Cal.App.3d 151, 153 (Smith).) “The tendering of a guilty plea pursuant to a plea bargain, followed by acceptance of the plea by the judge, is the functional equivalent of a trial under Code of Civil Procedure section 170.6.” (Ibid.) The court in Smith explained why a timely section 170.6 motion must be made before a plea is accepted by a judge: “[A] guilty plea, once accepted by the court, is the equivalent of a verdict of a jury, constitutes a conviction, and leaves nothing to 10 be done but pronouncement of judgment and imposition of punishment.” (Smith, at p. 154.) That Garcia’s plea was entered pursuant to an indicated sentence rather than a plea bargain does not remove the trial court’s acceptance of the plea from the ambit of section 170.6. The court In re Byron B. (1979) 98 Cal.App.3d 330 (Byron B.) determined that there is no meaningful difference between a negotiated plea and an “open” plea. Byron B. involved not a plea bargain but an admission in a juvenile court proceeding. The court in that case found the attempted distinction between the two situations to be “one without a difference,” that “acceptance of a ‘straight’ admission does potentially involve contested issues, and that [a section 170.6] motion to disqualify must be made before the judge accepts the admission.” (Id. at p. 337.) The Byron B. court then paraphrased Smith, supra, 71 Cal.App.3d 151, stating, “the tendering of an admission followed by acceptance of the admission by the judge is the functional equivalent of a trial under section 170.6.” (Byron B., at p. 337.) The trial court in this case emphasized that its acceptance of Garcia’s plea was not pursuant to a plea bargain, but following disclosure of an indicated sentence. As in Byron B., we find that distinction to be “without a difference.” (Byron B., supra, 98 Cal.App.3d at p. 337.) As discussed, acceptance of Garcia’s plea involved contested issues of law or fact. (Ibid.; Lyons, supra, 73 Cal.App.3d at p. 627; Smith, supra, 71 Cal.App.3d at p. 153.) The People’s section 170.6 motion should have been granted. Fraijo v. Superior Court (1973) 34 Cal.App.3d 222 (Fraijo) and People v. Montalvo (1981) 117 Cal.App.3d 790 (Montalvo), in which the courts concluded that pretrial acceptance of a plea bargain does not involve contested issues of fact, are 11 distinguishable. Both of those cases involved rejection rather than acceptance of a plea, and the statutory provision at issue was section 170.6, subdivision (a)(2), not subdivision (a)(1), as is the case here. In Fraijo, the trial judge tentatively accepted and later rejected a plea bargain. The matter was set for trial before the same judge that rejected the plea bargain. Before the trial commenced, the defendant filed a section 170.6 motion, which was rejected as untimely. The appellate court issued a peremptory writ of mandate compelling acceptance of the section 170.6 challenge, concluding that the pretrial plea proceedings did not involve “a determination of contested fact issues relating to the merits” within the meaning of section 170.6, subdivision (a)(2). 2 The court in Fraijo reasoned: “A plea bargain is concerned only with the sentence to be imposed in exchange for defendant’s plea of guilty which plea admits all of the facts necessary to establish guilt. Sentencing is addressed to the discretion of the trial judge and involves an evaluation of the circumstances surrounding the offense. Such an evaluation is not a determination of a factual issue on the merits as envisioned by section 170.6. A judge’s evaluation of admitted facts, to determine whether to refuse or accept a proposed plea bargain, 2 Section 170.6, subdivision (a)(2) states in relevant part: “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 prior to trial, and not involving a determination of contested fact issues relating to the merits, shall not preclude the later making of the motion provided for in this paragraph at the time and in the manner herein provided.” 12 does not involve a fact finding function in respect of an issue to be tried.” (Fraijo, supra, 34 Cal.App.3d at p. 225.) Montalvo, like Fraijo, involved a trial judge’s rejection of a pretrial plea bargain. When the matter was then reassigned from master calendar to that same judge for trial, the defendant moved to disqualify the judge under section 170.6, who denied the motion as untimely. The appellate court in Montalvo applied the reasoning in Fraijo, concluding that the trial judge’s evaluation of facts when determining whether to accept a plea bargain does not involve resolution of a factual conflict. The appellate court found the section 170.6 motion, made before commencement of trial and “after a pretrial proceeding not involving the determination of a contested fact issue relating to the merits of the case,” to be timely and disqualification mandatory. (Montalvo, supra, 117 Cal.App.3d at p. 796.) The Montalvo court distinguished Lyons, supra, 73 Cal.App.3d 625, noting that the Lyons court based its holding on subdivision (a)(1) of section 170.6, which prohibits a judge who is challenged for prejudice to hear any matter that “‘involves a contested issue of law or fact’” whereas the applicable statutory language in section 170.6, subdivision (a)(2) “relates only to a determination of a contested fact issue relating to the merits.” (Montalvo, at p. 795.) Fraijo and Montalvo, which both concerned subdivision (a)(2) of section 170.6 and not subdivision (a)(1), are distinguishable and therefore inapposite. In this case, the People’s motion to disqualify was made pursuant to section 170.6, subdivision (a)(1), which prohibits a challenged judge from hearing any matter involving a contested issue of law or fact. The trial court’s decision to dismiss Garcia’s prior strike convictions and its acceptance of Garcia’s plea involved contested 13 issues of law or fact. (Byron B., supra, 98 Cal.App.3d at p. 337; Lyons, supra, 73 Cal.App.3d at p. 627; Smith, supra, 71 Cal.App.3d at pp. 153–154.) The People’s section 170.6 motion to disqualify Judge Verastegui was timely and in proper form, and disqualification was mandatory. (Lorch, supra, 101 Cal.App.5th at p. 1274.) Grant v. Superior Court (2001) 90 Cal.App.4th 518 and Mezzetti v. Superior Court (1979) 94 Cal.App.3d 987, cited by the trial court, do not support rejection of the People’s section 170.6 motion. The court in Grant rejected a section 170.6 challenge to a judge presiding at a case management conference, which does not involve ruling on contested issues of law or fact. (Grant, at p. 526.) Mezzetti rejected a section 170.6 motion to disqualify a judge presiding over a settlement conference, which also involved no contested issues of law or fact. (Mezzetti, at p. 990.) The circumstances in those cases differ substantially from this one, in which striking Garcia’s prior strike convictions and accepting his plea involved contested issues of law or fact. The trial court here was therefore required to accept the section 170.6 challenge and to assign the matter to a different judge.3 DISPOSITION Let a peremptory writ of mandate issue in case No. 25CJCF05572, directing the superior court to vacate its orders denying the peremptory challenge to Judge Verastegui under section 170.6 and accepting Garcia’s plea, and to enter a 3 We do not address Garcia’s arguments as to whether the People’s section 170.6 challenge was made in bad faith, giving him the right to object as provided in J.O. v. Superior Court (2026) 19 Cal.5th 753. That issue is not properly before this court. 14 new order accepting the section 170.6 challenge and assigning the case to a different judge. The stay of proceedings in the superior court is vacated upon issuance of this opinion. CHAVEZ, Acting P. J. We concur: RICHARDSON, J. GOORVITCH, J. 15