Filed 5/30/23
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
DANIEL CARLOS GARCIA, E080436 Petitioner, (Super.Ct.No. CVPS2204495) v. OPINION THE SUPERIOR COURT OF RIVERSIDE COUNTY,
Respondent;
CHAD BIANCO, as Sheriff, etc.,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate from an order of the
Superior Court of Riverside County. Anthony R. Villalobos, Judge. Petition denied.
Rex Adam Williams, under appointment by the Court of Appeal, for Petitioner.
Cummings, McClorey, Davis, Acho & Associates and Sarah L. Overton for
Respondent.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.
1 Minh C. Tran, County Counsel, Kelly A. Moran, Chief Deputy County Counsel,
and Emily C. Headlee, Deputy County Counsel, for Real Party in Interest.
In 2016, petitioner Daniel Carlos Garcia was diagnosed as having porphyria, an
extremely rare condition that is potentially fatal, especially if not properly treated.
During an attack of porphyria, the skin becomes extremely sensitive to sunlight; sun
exposure can cause burning pain and blisters.
Garcia is currently in jail awaiting trial on charges including murder. In the
criminal action, Garcia made a series of requests for testing, evaluation, treatment, and
preventive measures to deal with his porphyria. The trial court, per Judge Anthony R.
Villalobos, granted some of them (which may not even have been contested). However,
when Garcia made an ex parte application for multiple measures — including being
given protective clothing, being kept out of direct sunlight, and being transported only in
air-conditioned vehicles with tinted windows — Judge Villalobos denied the application.
About a month later, Garcia filed a petition for writ of habeas corpus. He alleged
that the jail’s failure to deal properly with his porphyria constituted cruel and unusual
punishment and violated the Americans with Disabilities Act. The case was assigned to
Judge Villalobos. Garcia promptly filed a peremptory challenge to Judge Villalobos
under Code of Civil Procedure section 170.6 (section 170.6). Judge Villalobos denied the
section 170.6 challenge as untimely; he reasoned that the habeas proceeding was a
continuation of the criminal action.
2 Garcia has now filed a petition for writ of mandate to require Judge Villalobos to
grant his section 170.6 challenge.
It is well-established that, for purposes of section 170.6, a habeas proceeding can
be a continuation of a criminal action — typically, because they both involve overlapping
issues going to guilt and/or sentencing. By contrast, here, the issues in the habeas
proceeding are limited to the conditions of confinement. Nevertheless, because Garcia
injected issues of the conditions of confinement into the criminal action, we conclude that
the habeas proceeding is a continuation of the criminal action. Hence, Judge Villalobos
correctly rejected the section 170.6 challenge as untimely.
I
STATEMENT OF THE CASE
A. Trial and Conviction.
In 2012, Garcia was convicted of murder, conspiracy to commit murder, and
various financial crimes and sentenced to life in prison without the possibility of parole.
In 2016, we modified the judgment in minor respects but otherwise affirmed. (People v.
Garcia et al. (Aug. 3, 2016, E057519) [nonpub. opn.].)
In 2020, however, the superior court granted Garcia’s unopposed petition for a
writ of habeas corpus and ordered a new trial. On June 30, 2020, the criminal action was
assigned to Judge Villalobos for all purposes.
3 B. Onset of Porphyria Symptoms.
Meanwhile, in prison, Garcia had been diagnosed as having a form of porphyria.
Porphyria is a group of mostly hereditary diseases that impair the production of heme,
causing porphyrins to build up in the blood.
During an attack of porphyria, the skin can become so sensitive to light that
exposure to the sun can cause burning pain and blisters. Other symptoms can include
“severe abdominal pain, vomiting, constipation, diarrhea, . . . urinary problems, muscle
weakness, elevated heart rate, high blood pressure, seizures, and breathing muscle
paralysis.” (Punctuation altered.) An attack of porphyria can be “excruciatingly
painful.” It requires emergency medical treatment and is potentially fatal.
C. Judge Villalobos’s Rulings in the Criminal Case.
In the criminal case, on July 21, 2020, Garcia made an oral motion to be blood-
tested for porphyria, at his expense. Judge Villalobos granted the motion.1
On November 19, 2020, Judge Villalobos ordered that Garcia be provided with a
sweatshirt, due to his “issues with sunlight,” and that he be provided with his prescribed
medication.
On November 15, 2021, Garcia filed an ex parte application to order the Sheriff’s
Department to (1) provide him with protective clothing to minimize his exposure to
sunlight; (2) keep him out of direct sunlight while outdoors; (3) transport him only in air-
1 Evidently the test was negative; Garcia later claimed that the jail botched the testing protocol.
4 conditioned vehicles with tinted windows; (4) give him a genetic test for porphyria; (5)
allow him to be evaluated by two named specialists; and (6) produce a treatment plan for
him.
The Sheriff’s Department opposed the application. It argued that there was
insufficient evidence that Garcia needed the treatment sought: “[W]e don’t have . . . any
indication that he has been diagnosed with this condition . . . .” “I don’t know if this is
the proper way to treat it. And I don’t know if it’s something that is necessary for his
condition or if maybe there’s something else that a doctor can suggest.”
It represented that Garcia had been blood-tested for porphyria; if the test was
positive, he would be treated by jail medical staff; if a specialist was necessary, he would
be referred to a specialist; and if a doctor ordered any particular treatment, “there is no
reason to believe that the sheriff’s department would not comply with any medical order
that does not pose a safety and security concern.”
On November 19, 2021, at the hearing on the application, defense counsel
withdrew the requests for genetic testing, for an evaluation by an outside specialist, and
for a treatment plan. However, he continued to request protection from sunlight.
Specifically, he said: “Your Honor, what I would suggest . . . is that we take my
application off calendar subject to putting it back on calendar on two days’ notice; that
the Court enter a minute order that just says to . . . the extent possible and reasonable, the
sheriff’s department will keep him out of the sun.”
5 Judge Villalobos denied the application. He explained, “I’ll let the jail go ahead
and proceed with their process.”
On June 15, 2022, again in the criminal action, Garcia filed an ex parte application
for treatment with Givlaari, a medication for porphyria costing $40,000 to $60,000 a
month, and, in the alternative, a motion for release on bail. On June 24, 2022, after a
hearing, Judge Villalobos denied the bail motion. The ex parte application for treatment
with Givlaari was repeatedly continued until, on January 20, 2023, defense counsel took
it off calendar.
On September 30, 2022, Judge Villalobos ordered the jail to provide Garcia with
meals without any soy or MSG.
D. The Habeas Petition.
Meanwhile, on December 27, 2021, Garcia filed a habeas petition with this court.
We summarily denied it on January 3, 2022.
On May 17, 2022, he filed the same (or a similar) habeas petition with the
Supreme Court. In it, he sought specified “testing, monitoring and treatment” while in
jail, including protection from exposure to sunlight and treatment with Givlaari; or,
alternatively, release on bail.
On October 26, 2022, the Supreme Court issued an order to show cause, returnable
before the superior court. The case was docketed in the superior court on November 9,
2022 and assigned to Judge Villalobos for all purposes. On November 15, 2022, the
clerk mailed notice of the assignment to Garcia.
6 On November 21, 2022, Garcia filed a section 170.6 challenge to Judge
Villalobos.
On December 12, 2022, Judge Villalobos denied the challenge. He explained:
“[F]or purposes of raising a CCP section 170.6 challenge, the habeas petition . . . is a
continuation of the ex parte applications for emergency medical orders filed in the
criminal court case . . . . Accordingly, the 170.6 is untimely. [Citations.] Moreover, it
appears that [the] habeas petition seeks reconsideration of the pretrial release ruling made
by this court in June 2022. As such, a 170.6 challenge unavailable. [Citation.]”
E. The Present Writ Petition.
On December 23, 2022, Garcia filed an extraordinary writ petition in the Supreme
Court. In it, he requested a writ compelling the superior court to grant his section 170.6
challenge to Judge Villalobos. The Supreme Court transferred the matter to this court.
We issued an order to show cause, stayed the proceedings in the trial court, and appointed
counsel.
II
THE PARTY STATUS OF THE SUPERIOR COURT
In addition to the Sheriff’s return, the superior court has also filed a return to the
petition. On our own motion, we question the propriety of this.
“‘[A] trial court may not initiate writ proceedings and may appear to defend itself
in a writ proceeding only in a limited number of circumstances.’ [Citation.]” (Luckey v.
Superior Court (2014) 228 Cal.App.4th 81, 95.) “Lower courts may appear to defend
7 their actions on appeal when the real party in interest does not appear; and (1) the issue
involved directly impacts the operations and procedures of the court, or (2) potentially
imposes financial obligations which would directly affect the court’s operations.
[Citation.] Additionally, a trial court can be permitted to appear on appeal when, due to
unique circumstances, the real party in interest cannot ‘meaningfully oppose the petition.’
[Citation.]” (Id. at p. 96.)
None of these conditions apply here. The Sheriff, the real party in interest, has
appeared. We see no reason why he cannot meaningfully oppose the petition. Moreover,
the issues do not impact court operations or procedures (at least, no more so than the
usual section 170.6 challenge) and do not threaten to impose any financial obligations on
the court.
Ordinarily, then, we would strike the superior court’s return. (Howard Gunty
Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 576, fn. 6.) In an
appropriate case, however, we also have the option of treating the superior court as an
amicus curiae. (Entente Design, Inc. v. Superior Court (2013) 214 Cal.App.4th 385, 389,
fn. 2; Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315, fn. 2.) We will do
so.
This leaves one problem: The superior court also filed exhibits. A party can; an
amicus cannot. However, those exhibits are helpful, and all of them are judicially
noticeable. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) Accordingly, we take
judicial notice of them.
8 III
THE HABEAS PROCEEDING AS
A CONTINUATION OF THE CRIMINAL ACTION
A. General Legal Background.
“[S]ection 170.6 affords litigants the right to peremptorily challenge a superior
court judge based on a good faith belief that the judge is prejudiced. When a motion
under section 170.6 is in proper form and timely filed, the judge is not permitted to try
the assigned civil or criminal action or special proceeding, or to hear ‘any matter therein
that involves a contested issue of law or fact.’ [Citation.]” (Maas v. Superior Court
(2016) 1 Cal.5th 962, 969-970 (Maas).) Section 170.6 applies in a habeas proceeding.
(Maas, supra, at p. 970.)
When a criminal case has been assigned to a judge for all purposes, any section
170.6 challenge must be filed “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.” (§ 170.6, subd. (a)(2).)
Moreover, “‘[a] peremptory challenge may not be made when the subsequent
proceeding is a continuation of an earlier action.’” (Birts v. Superior Court (2018) 22
Cal.App.5th 53, 58.) “[W]hen a second action or special proceeding ‘involves
“substantially the same issues”’ and ‘“matters necessarily relevant and material to the
issues”’ in the original case, the second action or proceeding is considered a continuation
of the earlier action or proceeding for purposes of section 170.6. [Citation.]” (Maas,
9 supra, 1 Cal.5th at p. 979; accord, McClenny v. Superior Court (1964) 60 Cal.2d 677,
684.) “‘The [continuation] rule is designed to prevent forum shopping.’ [Citation.]”
(Birts, supra, at p. 58.)
“Where the underlying material facts are not in dispute, we review the trial court’s
order denying a peremptory challenge de novo. [Citations.]” (People v. Superior Court
(Olivo) (2019) 36 Cal.App.5th 942, 947.)
B. Discussion.
Certainly a habeas proceeding can be a continuation of a criminal action. In
Yokley v. Superior Court (1980) 108 Cal.App.3d 622 (Yokley), in the criminal action, the
defendant pleaded guilty. (Id. at p. 624.) He then filed a habeas petition, alleging that he
had been mentally incompetent to plead guilty and that his counsel had rendered
ineffective assistance. (Id. at p. 623.) The habeas proceeding was assigned to the same
judge who had taken the guilty plea. The defendant filed a section 170.6 challenge; it
was denied as untimely. (Id. at p. 624.) The appellate court held that the habeas
proceeding was a continuation of the criminal action (id. at pp. 624-628): “The factual
issues to be resolved relate directly to the criminal proceeding and involve matters
necessarily relevant and material to the issues involved in the original action, and thus
constitute a continuation of the original action.” (Id. at p. 628; see also Maas, supra, 1
Cal.5th at pp. 979-980 [approving Yokley].)
Arguably, Yokley is distinguishable because here, the habeas proceeding does not
relate to guilt, innocence, or the validity of any eventual conviction or sentence. Rather,
10 it relates solely to the conditions of Garcia’s pretrial confinement. However, the criminal
action also related, at least in part, to the conditions of Garcia’s pretrial confinement.
Garcia chose to raise, in the criminal action, such issues as whether the jail had to test
him for porphyria; had to provide him with Givlaari; had to provide him with (or at least
let him wear) protective clothing; had to provide him with a special diet; and had to
shield him from sunlight during transportation. Thus, the habeas proceeding “‘involves
“substantially the same issues,”’” or at a minimum, “‘“matters necessarily relevant and
material to the issues,”’” in the criminal action. (See Maas, supra, 1 Cal.5th at p. 979.)
Indeed, this looks like a classic case of forum-shopping. Garcia was not happy
with Judge Villalobos’s rulings (and comments) on November 19, 2021, so on December
27, 2021, he filed the separate habeas proceeding. He tried to have the habeas proceeding
heard first by this court and then by the Supreme Court, only to find himself back in front
of Judge Villalobos again. Hence his section 170.6 challenge.
Garcia raises several counter-arguments.
First, Garcia argues that parties to the habeas proceeding are different from the
parties to the criminal action. (See NutraGenetics, LLC v. Superior Court (2009) 179
Cal.App.4th 243, 257 [cases involving the continuation rule either “involve the same
parties at a later stage of their litigation with each other, or they arise out of conduct in or
orders made during the earlier proceeding,” some italics omitted].) Actually, it does not
matter that the parties “are not exactly the same as those who participated in the previous
proceedings, [as long as] the interested parties are the same . . . .” (Stephens v. Superior
11 Court (2002) 96 Cal.App.4th 54, 63); see also National Financial Lending, LLC v.
Superior Court (2013) 222 Cal.App.4th 262, 277 [“we d[o] not require that there be a
precise identity between the parties in both proceedings but instead require[] that there be
an identity of interests in both proceedings.”]; Andrews v. Joint Clerks etc. Committee
(1966) 239 Cal.App.2d 285, 288, fns. 2 & 3, 292-293, 295-297 [second action was a
continuation of first action where parties were “essentially” the same; 30 of 35 plaintiffs
and 4 of 10 defendants in second action had also been parties to first action].)
Here, the interested parties are the same. In all of the proceedings in the criminal
action concerning Garcia’s porphyria, he was seeking relief against the Sheriff. In his
November 15, 2021 application, he specifically requested orders directed to the Sheriff’s
Department. At the hearing on November 19, 2021, counsel appeared “on behalf of the
[S]heriff’s [D]epartment.” The trial court noted “just for the record, the People are not
present since this is an ex parte hearing requested by the defense regarding some medical
issues.”
We are not saying that the Sheriff’s appearance made him a party to the criminal
action for all purposes. Nevertheless, no matter how the proceedings in the criminal
action concerning Garcia’s porphyria are characterized, the parties to those proceedings
included both the Sheriff and Garcia, who are also the parties to the habeas proceeding.
Second, Garcia argues that the habeas proceeding does not collaterally attack any
prior criminal judgment. He relies on Maas. There, the petitioner filed a habeas petition
in 2013 challenging a 1998 conviction. (Maas, supra, 1 Cal.5th at p. 970.) The main
12 question was whether he could file a section 170.6 challenge to the judge in the habeas
proceeding even before an order to show cause had issued. (Ibid.) The Supreme Court
held that he could. (Id. at pp. 975-983.)
It began by saying, “The question presented in the case involves an interplay
between a litigant’s right to disqualify a superior court judge for prejudice under section
170.6, and the procedures governing a petitioner’s challenge to his or her criminal
conviction or sentence by way of a petition for writ of habeas corpus.” (Maas, supra, 1
Cal.5th at p. 972.) Also, in explaining what a habeas proceeding is, it observed, “A
habeas corpus proceeding is not a criminal action. Rather, as relevant here, it is an
independent, collateral challenge to an earlier, completed criminal prosecution.
[Citation.]” (Id. at p. 975.)
The court held that the habeas proceeding before it was a continuation of the
criminal action. (Maas, supra, 1 Cal.5th at pp. 979-980.) Nevertheless, it concluded that
the petitioner was entitled to file a section 170.6 challenge, because the habeas
proceeding had been assigned to a different judge than the criminal action. (Maas, supra,
at pp. 980-981.)
Garcia seizes on the language in Maas characterizing a habeas proceeding, “as
relevant here,” as a collateral challenge to a final judgment of conviction. (Maas, supra,
1 Cal.5th at pp. 979-980.) However, it did not hold that that is the only possible kind of
habeas proceeding; it is not. And Maas did not hold that a habeas proceeding cannot be a
13 continuation of a criminal proceeding unless it is a collateral attack on a conviction. That
question simply was not before the court.
In a third argument (related to the second), Garcia argues that the habeas
proceeding is not a continuation of the criminal action because the criminal action is still
pending. However, Maas’s definition of a “continuation” does not require that the first
proceeding be finished. In the civil context, a second proceeding has been held to be a
continuation of a first, even though the first had not yet concluded. (Andrews v. Joint
Clerks etc. Committee, supra, 239 Cal.App.2d at pp. 295-296.)
Admittedly, the original rationale for the continuation rule may appear to support
this argument. The Supreme Court has explained that “[a]lthough the statute does not
expressly so provide, it follows that, since the motion must be made before the trial has
commenced, it cannot be entertained as to subsequent hearings which are a part or a
continuation of the original proceedings.” (Jacobs v. Superior Court (1959) 53 Cal.2d
187, 190 (Jacobs).) Arguably, then, if there has been no trial in the original proceeding, a
section 170.6 challenge is not barred, even in a continuation of the original proceeding.
Jacobs, however, was referring to the general rule that a section 170.6 challenge
must be made, at the latest, before trial. In other words, whenever the time to raise a
section 170.6 challenge in the original proceeding has run, a challenge is also barred in
the continuation. Arguably, if the time to raise a section 170.6 challenge in the original
proceeding has not run, a challenge can be made for the first time in the continuation.
Here, however, because the criminal action was assigned to Judge Villalobos for all
14 purposes on June 30, 2020, in open court, the time to bring a section 170.6 challenge
expired 10 days after notice of the all purpose assignment — i.e., on July 10, 2020.
Hence, it had already expired long before the habeas proceeding was filed.
We therefore conclude that Judge Villalobos properly denied Garcia’s section
170.6 challenge as untimely.
IV
DISPOSITION
The petition for extraordinary writ is denied and the stay is dissolved.
CERTIFIED FOR PARTIAL PUBLICATION RAMIREZ P. J.
We concur:
MILLER J.
RAPHAEL J.