PG X(P) Appeal: Remand.
PG X(P)(1) Right To Peremptory Challenge Of Trial Judge Following Appeal And Remand For Resentencing.
“A motion under [CCP 170.6(2)] may be made following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.” (CCP 170.6(2).) Peracchi v. Superior Court (2001) 94 CA4th 209 [114 CR2d 139], held that when the matter is remanded for procedures other than a new trial the proper approach is to focus on the function the judicial officer is to perform upon remand rather than simply the nature of the hearing at issue. Such an approach requires a case-by-case analysis. Hence, in a situation where the case is remanded for resentencing and the judge’s discretion is significant and will involve the presentation of evidence, the policy behind CCP 170.6 to avoid possible bias by a trial judge who has been reversed on appeal, is best served by interpreting “new trial” to encompass such a resentencing.
PG X(P)(2) Remand With Instructions To Impose Judgment On Lesser Included Offense.
See generally LIO II(G); also LIO III(A); see also LRO VIII(C).