Leon v. Super. Ct.
Filed 10/1/08 Leon v. Super. Ct. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOSE LUIS LEON, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party In Interest. | G040801 (Super. Ct. No. 05NF1500) O P I N I O N |
Original proceedings; petition for a writ of prohibition/mandate to challenge an order of the Superior Court of Orange County, Gregg L. Prickett, Judge. Petition granted.
Deborah A. Kwast, Public Defender, Thomas Havlena, Chief Deputy Public Defender, Kevin J. Phillips, Assistant Public Defender, and Martin F. Schwarz, Senior Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy District Attorney, for Real Party in Interest.
Jose Luis Leon argues the trial court erroneously overruled his objection to conduct a retrial on the prior conviction for street terrorism and denied his motion to vacate the retrial. We agree and order a peremptory writ of mandate to issue directing respondent trial court to vacate its order filed on July 18, 2008, overruling Leons objection to conducting a new trial and denying his motion to vacate the trial, and enter a new order sustaining his objection and granting his motion. The petition is granted. The stay previously issued is dissolved.
FACTS
In 2001, in a court trial, Leon was convicted of attempted manslaughter, being an active gang member carrying a concealed weapon, being an active gang member carrying a loaded firearm, and street terrorism. In our nonpublished prior opinion,
People v. Leon (Dec. 3, 2001, G028411) (Leon I), we affirmed in part, reversed in part, and remanded. As relevant here, we affirmed the convictions for being an active gang member carrying a loaded firearm and street terrorism.
In 2007, a jury convicted Leon of aggravated assault and street terrorism, and found true he suffered two prior convictions: active gang member carrying a loaded firearm and street terrorism. In our prior nonpublished opinion, People v. Leon
(June 20, 2007, G037125) (Leon II), we explained based on People v. Flores (2005)
129 Cal.App.4th 174, and the record before us, Leons two prior strike convictions were only one strike because street terrorism is a necessarily included offense of carrying a firearm while being an active participant in a criminal street gang. We stated: We remand the matter for resentencing consistent with the principles expressed in this opinion. In our disposition, we stated, we remand for resentencing.
On remand, the prosecutor attempted to amend the information and retry the prior conviction. The trial court denied the request to amend the information, but granted the request to retry the prior conviction and set jury trial for June 2, 2008. Leon objected to the trial courts ruling allowing the prosecutor to retry the prior conviction for street terrorism and moved to vacate the trial, and the prosecutor responded. The trial court overruled Leons objection, denied his motion, and set trial for September 8, 2008.
The public defender filed a writ of prohibition/mandate and request for an immediate stay of the jury trial scheduled for September 8, 2008. We invited the People to file an informal response. Seven days after the deadline to file an informal response, the Orange County District Attorney submitted an informal response. On August 29, 2008, we accepted and filed the District Attorneys late response. We also stayed all trial court proceedings in this matter, including the jury trial scheduled for September 8, 2008. On September 3, 2008, we granted Leons application to file an informal reply, and we filed the reply.
DISCUSSION
Leon argues the trial court erroneously overruled his objection to retry his prior conviction for street terrorism and denied his motion to vacate the retrial because the court exceeded its jurisdiction. Leon contends that based on our opinion in Leon II, the courts only option was to conduct a new sentencing hearing. We agree.
In People v. Dutra (2006) 145 Cal.App.4th 1359 (Dutra), the appellate courts remittitur ordered a sentencing trial. Because of an intervening decision by the California Supreme Court, the trial court did not conduct a sentencing trial. In rejecting the Attorney Generals contention, a change in the governing law authorizes the trial court to disobey a remittitur, the Dutra court stated, the trial court was bound not by law of the case but by the terms of our remittitur. (Id. at p. 1362.) Relying on Penal Code section 1262,[1] the court explained, According to the California Supreme Court, the rule requiring a trial court to follow the terms of the remittitur is jurisdictional, unlike the law
of the case doctrine. [Citations.] Therefore, whether the trial court believed our decision was right or wrong, or had been impaired by subsequent decisions, it was bound to follow the remittitur. [Citations.] (Dutra, supra, 145 Cal.App.4th at p. 1367.)
In Leon II, we concluded Leons 2000 conviction for street terrorism is a necessarily included offense of carrying a firearm while he was an active participant in a criminal street gang, and therefore, they count as one conviction, not two. And, We remand[ed] the matter for resentencing consistent with the principles expressed in this opinion. In our disposition, we remand[ed] for resentencing. Our remittitur was not ambiguous, and the trial courts only option was to conduct a resentencing hearing. (Dutra, supra, 145 Cal.App.4th at p. 1368.) Therefore, retrial of Leons prior conviction for street terrorism arising out of an incident that occurred in April 1999 exceeded the trial courts jurisdiction.
The district attorney does not attempt to distinguish Dutra, but relies solely on People v. Barragan (2004) 32 Cal.4th 236 (Barragan), to support its claim the trial court had jurisdiction to retry Leons prior conviction for street terrorism. Barragan is inapposite as it concerned the issue of whether retrial of a prior conviction was permissible after an appellate court reverse[d] that finding for insufficient evidence. (Id. at p. 239.) It did not involve the issue we have here, whether a trial court could disobey an appellate courts remittitur and conduct a proceeding not contemplated by such remittitur. Had the People disagreed with our conclusion in Leon II that resentencing was the only appropriate proceeding, it should have filed a petition for rehearing. (Dutra, supra, 145 Cal.App.4th at p. 1366.) On remand, the trial court is to conduct a sentencing hearing.
In his petition, Leon prayed for a peremptory writ on mandate directing the trial court to vacate its order filed on July 18, 2008, overruling his objection to conducting a new trial and denying his motion to vacate the trial, and enter a new order sustaining his objection and granting his motion. Therefore, the District Attorney had notice we may issue a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) Because the facts and relevant law are clear, no useful purpose would be served by issuance of an order to show cause, further briefing, and oral argument. (Alexander v.Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35; Dean v. Superior Court (1998) 62 Cal.App.4th 638, 642.)
DISPOSITION
Let a peremptory writ of mandate issue directing respondent trial court to vacate its order filed on July 18, 2008, overruling Leons objection to conducting a new trial and denying his motion to vacate the trial, and enter a new order sustaining his objection and granting his motion. The petition is granted. The stay previously issued is dissolved.
OLEARY, J.
WE CONCUR:
SILLS, P. J.
RYLAARSDAM, J.
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[1] Penal Code section 1262 states: If a judgment against the defendant is reversed, such reversal shall be deemed an order for a new trial, unless the appellate court shall otherwise direct.
