Yokley

Petitioner Anthony Yokley sought a writ of habeas corpus, alleging that at the time he entered his plea of guilty during trial he was mentally incompetent, and further, that he had been deprived of the effective assistance of counsel. The Court of Appeal issued its order to show cause, returnable before the Superior Court of the City and County of San Francisco, to determine issues raised by petitioner’s petition. The order to show cause was assigned to Judge Thomas Dandurand, who had presided over petitioner’s trial. Petitioner filed an affidavit pursuant to Code of Civil Procedure section 170.6, attempting to disqualify Judge Dandurand from presiding over the proceedings. The challenge was denied as being untimely.

We conclude that for purposes of Code of Civil Procedure section 170.6, a hearing of an order to show cause made returnable before the trial court by the Court of Appeal, to make an inquiry as to a defendant’s competence to enter a plea of guilty or to determine whether he had been denied effective assistance of counsel in the trial court, is a continuation of a criminal trial. Therefore, petitioner’s Code of Civil Procedure section 170.6 challenge had not…