People v. Super. Ct. (Garcia)
CourtCalifornia Court of Appeal
Date FiledOctober 13, 2026
DocketB353018
StatusPublished
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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
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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
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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,
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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,
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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
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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).)
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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
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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
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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
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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.”
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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.
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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.
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