People v. Superior Court of San Diego County (Cal. Ct. App., June 25, 2025, No. D085508) 2025 WL 1873313, at *1–2
Summary: in two similarly criminal cases, the People petitioned the court for writs of mandate directing the trial court to grant their peremptory challenges to Judge Cynthia Davis under Code of Civil Procedure section 170.6. This court issued orders to show case in each case and consolidated the petitions.
Judge Davis was then the sole judge assigned to the San Diego County Behavioral Health Court (BHC), a collaborative court that provides means for defendants suffering from serious mental illness to receive court supervised treatment under formal supervised probation. Here, the trial judges referred real parties in interest to BHC for admission screening over the People’s objection. The People filed their section 170.6 peremptory challenges against Judge Davis immediately upon the referrals. Judge Davis denied the challenges, based on a conclusion that proceedings in BHC are not hearings involving contested issues of fact or law. The Court of Appeal disagreed with this conclusion and issued writs directing the trial court to grant the People’s peremptory challenges.
Behavioral Health Courts History and Protocols
BHC is a collaborative court that utilizes evidence-based practices, treatment, and rehabilitative services with intensive judicial supervision to provide services to defendants who are suffering from serious mental illness. A team approach includes a judicial officer, a public defender, a district attorney, a city attorney, probation officers specifically assigned to the program, mental health treatment professionals under contract to the program, mental health clinicians from the public defender’s office, a court analyst, and a representative from the county Behavioral Health Services.
BHC was not created by statutory mandate, but rather through a joint agreement of the various involved parties to address mental health issues for qualifying individuals involved in the criminal justice system. BHC has no governing statutes. Potential participants in BHC are identified through a referral system. Upon request, and after the defendant is convicted or enters a plea, but before sentencing, a trial court may elect to refer a defendant to BHC for admission screening. The trial court may make the referral to BHC over the objection of the prosecutor.
At the first BHC appearance, the defendant signs a BHC referral form and an authorization for a release of medical records and information. The defendant then meets with a mental health clinician, who prepares a screening report. Prior to the defendant’s second appearance at BHC, the entire team reviews the determine whether a defendant is suitable for admission by unanimous decision. If there is disagreement, the BHC judge makes the ultimate decision as to admission.
If the defendant is accepted into BHC, in open court, the BHC judge issues an order granting them formal supervised probation. While on probation, the defendant receives services, such as stable housing, counseling/psychiatric care, and medication, when needed. The defendant must complete four performance-based phases over a minimum period of 18 months.
If the defendant violates the terms of the probation, the BHC judge holds a probation violation hearing, during which the court may modify the terms of probation or impose other consequences. If the BHC judge may revoke their probation and refer them back to the original sentencing judge for imposition of sentence. If the defendant successfully completes the program, the court will terminate their probation and may reduce or expunge the underlying criminal convictions.
Throughout its history, BHC has had only one assigned judge at any given time.
Peremptory challenges to Judge Davis under section 170.6.4
The People contend that their peremptory challenge was timely and in appropriate form, and that Judge Davis had no discretion to deny it. Broadway and Villanueva assert Judge Davis correctly denied their challenges because the plain language of section 170.6, subdivision (a)(1) limits peremptory challenges to situations in which there is a pending trial or hearing that involves a contested issue of law or fact, and, as Judge Davis concluded, the screening and acceptance process is not a trial or a hearing involving contested issues of law or fact.
Section 170.6, subdivision (a)(1) 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.”
Prejudice is established, for purposes of section 170.6, by a motion “supported by an affidavit or declaration under penalty of perjury, or an oral statement under oath’ that the assigned judge ‘is prejudiced against a party or attorney … so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge.” (§ 170.6, subd. (a)(2).)
“As a general rule, a challenge of a judge is permitted under section 170.6 any time before the commencement of a trial or hearing.”
The trial court has no discretion to deny a section 170.6 peremptory challenge that complies with the statutory requirements and review of the trial court’s decision to grant or deny the challenge de novo, as a question of law.
Analysis of denial of peremptory challenges
The issue is whether BHC proceedings constitute a pending trial or hearing involving questions of fact or law (or, alternatively, an all-purpose assignment). BHC is a collaborative court and does not fit neatly into the common examples discussed by other courts in defining what constitutes a trial or hearing for purposes of section 170.6. In the BHC context, the BHC judge will always make the final decision as to whether to admit the defendant. Although BHC is described as “collaborative,” it is not the case that the screening and acceptance proceedings are never contested. Here, the People objected to the trial court’s referral of both Broadway and Villanueva to BHC for consideration in the first instance, and it follows that they would oppose both their screening for and acceptance into BHC. BHC constitutes an extended sentencing proceeding, and when a new judge presides at sentencing, that judge is subject to challenge under section 170.6.
BHC proceedings may involve probation violation proceedings if the BHC defendant does not comply with the terms of probation. A defendant may file a section 170.6 peremptory challenge to a judge that presides over a probation violation hearing, if that judge was not the same judge the presided over trial or sentencing.
Once the case is transferred for screening, the BHC judge is assigned for all purposes relevant to BHC.
BHC proceedings involve judicial decisions regarding potentially contested matters of fact, and a timely section 170.6 peremptory challenge to the judge assigned to BHC must be granted. It is critical that we “ ‘preserve public confidence in the impartiality of the [collaborative] courts.’ ” (Maas, supra, 1 Cal.5th at p. 973.)
Disposition
The Court issued writs of mandate, directing the trial court to vacate its orders denying the People’s peremptory challenges and enter new orders granting the People’s peremptory challenges.
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