Rios v. Super. >Ct.>













Filed 1/24/13 Rios v. Super. Ct. CA6

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TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




>

LUIS DANIEL RIOS, Petitioner, v. THE SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent; THE PEOPLE, Real Party in Interest.	No. H038585 (Santa Cruz County Super. Ct. No. F21479)

Petitioner Luis Daniel Rios was convicted of four felony
counts. Three Penal Code section
12022.55href="#_ftn1" name="_ftnref1" title="">[1]
allegations were also found true. This
court concluded that instructional error
had occurred and remanded the case with directions that Rios >either be retried on the section 12022.55
allegations “within 60 days of the filing of the remittitur in the trial court”
or resentenced without
enhancements. Rios was not retried
within 60 days, so he moved to dismiss the enhancements and for
resentencing. The trial court denied the
motion and calendared a trial setting date on the enhancement allegations. This court issued a peremptory writ of
mandate in the first instance directing the trial court to grant the motion to
dismiss and resentence Rios as directed in the earlier remittitur. The trial court complied with these
directions. The People then filed a >new complaint indicating on its face
that it was a “REFILE” of the original complaint. Rios demurred. The People conceded that Rios could not be
retried on the substantive counts, and the trial court sustained the demurrer
to those counts without leave to amend, but it overruled the demurrer to the
enhancement allegations. Rios seeks a
writ of mandate directing the trial court to sustain the demurrer in its
entirety and to dismiss the enhancement-allegations-only case against him.

We conclude that the trial court’s ruling amounted to “ ‘clear error under well-settled
principles of law and undisputed facts.’ ” (Lewis v. Superior Court (1999) 19
Cal.4th 1232, 1258 (Lewis).) Accordingly, we will issue a peremptory writ
in the first instance directing the trial court to vacate its order overruling
Rios’s demurrer to the enhancement allegations, to enter a new order sustaining
the demurrer in its entirety without leave to amend, and to enter a href="http://www.mcmillanlaw.com/">judgment of dismissal.



I. BACKGROUND

Rios was convicted in 2003 of three counts of href="http://www.fearnotlaw.com/">involuntary manslaughter (§ 192,
subd. (b)) and one count of discharging a firearm from a vehicle (former
§ 12034, subd. (c)). Three
section 12022.55 allegations were also found true. This court reversed for instructional error. (People
v. Garcia (Apr. 28, 2005,
H026159) [nonpub. opn.].)

Rios was retried and again convicted in 2009, and the
section 12022.55 allegations were again found true. He appealed, and this court concluded that
the trial court had prejudicially erred in failing to instruct the jury on the
mental state required to prove the section 12022.55 allegations. (People
v. Rios (Sept. 2, 2010,
H034085) [nonpub. opn.].) The
disposition of the court’s unpublished opinion stated, “We reverse the true
findings on the . . . section 12022.55 enhancements. We remand with instructions that the People
may, if they choose, retry appellant on the . . . section 12022.55 enhancement
allegations within 60 days after the filing of the remittitur in the trial
court pursuant to . . . section 1382, subdivision 2, unless time is waived by
defendant, but if the People do not choose the retrial option, the trial court
is to resentence appellant on counts one, two, three and four.” (Ibid.) The remittitur was filed in the trial court
on December 20, 2010.

Rios did not waive time, nor was he retried within 60
days. On February 28, 2011, 70 days after the remittitur was filed
in the trial court, he moved to dismiss the enhancement allegations and for
resentencing without enhancements, citing this court’s “quite clear”
instructions. The trial court denied the
motion and calendared a trial-setting date.


Rios petitioned for writ relief. This court issued a peremptory writ of
mandate in the first instance (Palma v.
U.S. Industrial Fasteners, Inc. (1984)
36 Cal.3d 171, 180 (Palma); >Lewis, supra, 19 Cal.4th at pp. 1240-1241) directing the trial court to
grant Rios’s motion to dismiss and to resentence him “as directed in the
remittitur issued in . . . H034085.” (>Rios v. Superior Court (June 30, 2011, H036757) [nonpub.
opn.].) The opinion explained in
unambiguous language that the California Supreme Court “has established the
following rule regarding the trial court’s jurisdiction upon the filing of the
appellate court’s remittitur: ‘The order
of the reviewing court is contained in its remittitur, which defines the scope
of jurisdiction of the court to which the matter is returned. “The order of the appellate court as stated
in the remittitur, ‘is decisive of the character of the judgment to which the
appellant is entitled. The lower court
cannot reopen the case on the facts, allow the filing of amended or
supplemental pleadings, nor retry the case, and if it should do so, the
judgment rendered thereon would be void.’ ” [Citation.]’
[Citations.] [¶] Thus,
where, as here, the decision on appeal reverses with directions, ‘the trial
court is reinvested with jurisdiction of the cause, but only such jurisdiction
as is defined by the terms of the remittitur.
The trial court is empowered to act only in accordance with the
direction of the reviewing court; action which does not conform to those
directions is void. [Citations.]’ [Citations.]
This ‘strict rule’ applies even if ‘the directions of the reviewing
court are based upon an erroneous concept.
The remedy of the party aggrieved by the error lies only in a petition
[for rehearing] to a reviewing court.
[Citations.]’ [Citation.]” (Id. at
pp. 8-9, italics added.) This court
expressly declined to reach “the People’s contentions that refiling of the
section 12022.55 enhancement allegations after the expiration of the 60-day
period following the filing of the remittitur is statutorily authorized under
sections 1382 and 1387,” explaining that “[t]hat issue is not before us because
the trial court did not dismiss the enhancement allegations and the People did
not attempt to refile the enhancement allegations at the February 28, 2011
hearing.” (Id. at p. 10.)

At a September 13, 2011 hearing, the trial court complied
with this court’s directive, vacating its earlier order, entering a new order
granting Rios’s motion to dismiss, and setting a date for resentencing. At the same hearing, the People filed a new
complaint indicating on its face that it was a “REFILE” of the original
complaint.

Rios was resentenced on October 18, 2011. He served his sentence and was released. He demurred to the new complaint on the
ground that it was legally barred (§ 1004, subd. (5)) by section 654,
subdivision (a)’s proscription against multiple prosecutions and by this
court’s specific directives.

The People argued in opposition that section 654 did not bar
reprosecution of the section 12022.55 allegations because Rios had never been
sentenced on them. They further
contended that this court had specifically not
barred reprosecution of the enhancement allegations: “The Sixth District specifically did not
address the People’s inherent authority to re-file dismissed counts and
enhancements.” The People argued that
the discussion of relevant California Supreme Court authority in this court’s
writ opinion “addressed what the trial court could not do in the >original case. It did not address at all what the trial
court could or could not do should the People elect to re-file the enhancement
allegations as they are entitled to do pursuant to [section 1387].”

In his reply, Rios countered that “[n]owhere in either the
original opinion or the opinion granting the Writ of Mandate (filed June 30,
2011) does the Sixth District state [that] the special allegations ‘could be
re-tried’ if the prosecution failed to retry them within 60 days.” Citing People
v. Martin (1978) 87 Cal.App.3d 573 (Martin),
he noted that “[t]he prosecution fails to grasp the basic principle that the
special allegations cannot, and do not, exist in space. They must be attached to substantive charges.
. . . If the demur[rer] is sustained as
to the substantive charges, as everyone agrees it should be, then by operation
of law the demur[rer] is also sustained as to special allegations attached to
the substantive charges. There is no
case law or statutory authority that would support the absurd position that
[Rios] can be retried on the special allegations alone.”

In a surreply, the People contended that >Martin applied only to prior conviction
allegations. This court’s initial
directive “clearly” contemplated retrying the enhancement allegations alone,> they argued, and doing so would not run
afoul of double jeopardy. Construing
their failure to retry Rios within 60 days not as a violation of this court’s
directives but as a mere violation of Rios’s statutory speedy trial right, they
claimed the law was “clear” that “a dismissal based on a statutory speedy trial
violation does not bar re-filing of the charges.”

At the hearing on the demurrer, Rios’s trial counsel pointed
out that “we are in a completely different procedural posture than any of the
cases cited by the prosecution.” This
court’s “mandate,” she argued, “was either retry within 60 days or dismiss and
[re]sentence.”

The People conceded that they could not retry Rios on the
substantive counts, and the trial court sustained the demurrer to those counts
without leave to amend, but it overruled Rios’s demurrer to the section
12022.55 allegations. The court focused
on this court’s express refusal in Rios
v. Superior Court, supra, H036757
to reach “the People’s contentions that refiling of the section 12022.55
enhancement allegations after the expiration of the 60-day period following the
filing of the remittitur is statutorily authorized under sections 1382 and
1387,” characterizing that statement as creating an “ambiguity” and “an opening”
in an otherwise clear “order.” “[T]aking
into account the distinction in [Martin],
looking at People v. Carreon [(1997)
59 Cal.App.4th 804], also reading People
v. Anderson [(2009) 47 Cal.4th 92], I am going to overrule the demurrer as
to the special allegations only.” “[T]he
words of the Court of Appeal in this unpublished decision that governed the
Court are such that the Court believes that a second filing of enhancements
only would be permitted under Section 1387 of the Penal Code.” The trial court then asked the People to file
a first amended complaint “stating only the allegations.”

Rios petitioned the appellate division of the superior court
for writ relief. After further briefing
and several hearings, the court acknowledged that Rios had been tried,
convicted, and sentenced on the substantive charges, but it nonetheless
concluded (relying on People v. >Anderson (2009) 47 Cal.4th 92 (>Anderson) and People v. Villanueva (2011)
196 Cal.App.4th 411 (Villanueva)),href="#_ftn2" name="_ftnref2" title="">[2]
that “[t]he refiling of enhancements alone” “does not constitute a bar under
Penal Code Section 654 because the defendant has not been sentenced on the
enhancements.” The court noted that it
was “not making a ruling on whether or not double jeopardy bars the
prosecution,” nor was it “reaching the issue as to whether or not the fact of
conviction and final judgment precludes the prosecution of the special
enhancement[s] because that’s not a proper subject of demurrer.” “So I’m overruling the demurrer on the
grounds previously stated.” The court
granted Rios’s subsequent request for a rehearing but ultimately found nothing
that was “different or change[d] the position of the Court as to the status of
this particular case.”

Rios filed another writ petition in this court. He maintains that it was “not appropriate”
for the trial court to permit the People to make “an end run” around this
court’s “specific command.” Rios
contends that the trial court lacked jurisdiction to do anything beyond dismissing
the enhancements and resentencing him without enhancements.

This court issued a Palma
notice (Palma, >supra, 36 Cal.3d at p. 180) and stayed
all proceedings in the trial court “until further order of this court.” The Attorney General submitted a letter
brief, and Rios filed a Response to Opposition to Petition for Writ of Mandate
(hereinafter reply).



II. DISCUSSION

The Attorney General adopts the People’s arguments below “as
our opposition here” and makes several “additional observations” in her letter
brief. Taking issue with Rios’s conclusion
that once he was resentenced on the substantive charges, “the case was at an
end,” and the trial court “had no further jurisdiction in the matter,” she
asserts that “sentencing on substantive offenses does not bar retrial of
enhancement allegations.” That general
assertion may occasionally be true (see, e.g., Porter v. Superior Court (2009) 47 Cal.4th 125, 131 (>Porter), in which the defendant’s
counsel agreed to that procedure) but it is not true in the procedural posture
of this case. The flaw in the Attorney
General’s assertion is that it divorces Rios’s statements from this court’s two
directives.

Rios’s argument is that the remittitur provided an either/or
choice: either retrial on the section 12022.55 allegations within 60 days
of the remittitur’s issuance or resentencing
without enhancements. The dismissal
ordered here was not an ordinary section 1382 dismissal. Once the 60 days were up in this case, there
was, by order of this court, only one
option left: resentencing Rios without
enhancements. That is how the remittitur
defined the trial court’s jurisdiction.
The remittitur did not authorize the trial court to do anything
else. (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656 [“The trial
court is empowered to act only in accordance with the direction of the
reviewing court; action which does not conform to those directions is
void.”].) When the trial court
resentenced Rios, it had fully complied with this court’s orders, and this case
was over. The remittitur did not permit
the People to refile the original case with a new case number, and it certainly
did not permit the trial court to allow the new case to go forward with
enhancement allegations only. The
People’s section 1387 argument was, as Rios contends, “an end run” around this
court’s “specific command.”

The Attorney General next asserts that “[t]here is no merit
to [Rios’s] claim that it would be unfair to sentence him on the enhancement
allegations.” What Rios actually said
(in concluding his argument that the cases on which the People relied were
inapposite) was that “[t]here really can be no dispute that allowing the filing
of enhancement allegations, standing alone, after [Rios] has been tried,
convicted, sentenced and has served his sentence on the underlying substantive
charges, is completely and utterly improper and directly contrary to due
process of law.” To the extent Rios’s
concluding sentence can be construed as an argument, the cases the Attorney
General cites fail to refute it.

In People v. Statum (2002)
28 Cal.4th 682 (Statum), the
defendant argued that allowing the People to challenge the trial court’s
discretionary decision to reduce his “wobbler” offense (Veh. Code,
§ 2800.2) to a misdemeanor at sentencing (§ 17, subd. (b)) “ ‘would be unfair to [him] because he has
served his sentence in full.’ ” (Statum,
at p. 695.) The California Supreme Court
expressly declined to address that argument.
(Id. at p. 697.) Statum does
not advance the People’s position.

In In re Borlik
(2011) 194 Cal.App.4th 30 (Borlik),
this court rejected a parolee’s argument that it would be “unjust” to order his
reincarceration “because he completed his imposed term of imprisonment, ha[d]
reintegrated into society and [wa]s in full compliance with his parole
condition[s].” (Id. at p. 42.) It did so in
a case that bears absolutely no resemblance to this one. Borlik pleaded no contest to four felony
charges, admitted a great bodily injury enhancement allegation, and began
serving a six-year sentence. In 2009,
the superior court ordered that if he was eligible for release, he should be
released immediately. The Warden
appealed, arguing that Borlik was ineligible for worktime credits in excess of
15 percent because the great bodily injury enhancement triggered section
2933.1’s 15 percent limitation. While
the appeal was pending, the California Supreme Court issued a decision agreeing
with the Warden’s position. This court
then had to decide whether the high court’s decision should be applied
retroactively to Borlik, who had by that time been released on parole. In rejecting Borlik’s argument that
reincarceration would be unjust, this court pointed out that he had not, in
fact, completed his imposed term but had instead “received an unauthorized
early release on parole.” (>Borlik, at p. 42.) Borlik is
inapposite here.

The Attorney General next argues that, contrary to Rios’s
position, enhancement allegations can
“exist in space.” She cites >Anderson and Porter, neither of which support that proposition.

Anderson stands
for the unremarkable proposition that an enhancement allegation can be retried
apart from its underlying offense without violating double jeopardy where the
jury convicted the defendant of the underlying offense but the court declared a
mistrial on the enhancement allegation.
(Anderson, >supra, 47 Cal.4th at p. 123.) Anderson’s
companion case, Porter, stands for
the same proposition.

Porter was convicted of multiple felonies arising out of a
drive-by shooting, and various enhancement allegations were found true. (Porter,
supra, 47 Cal.4th at p. 131.) The trial court ordered a new trial on the
premeditation and gang enhancement allegations, and Porter’s counsel agreed
with the court’s suggestion that Porter could be sentenced before the retrial
and resentenced if the jury found the retried enhancement allegations
true. (Ibid.)

A few months later, Porter challenged the refiled
allegations, characterizing them as elements of greater offenses under >Apprendi v. New Jersey (2000) 530 U.S.
466 (Apprendi) and arguing, among
other things, that the trial court could not limit a retrial to an element
standing alone. (Porter, supra, 47 Cal.4th
at p. 131.) The trial court rejected
Porter’s arguments, but this court ordered the enhancement allegations
dismissed. The California Supreme Court
granted review “to decide whether double jeopardy principles permit retrial of
a penalty allegation after the jury’s verdict is found ‘contrary
to . . . evidence’ under section 1181(6).” (Porter,
at p. 132.) The court held that an order
granting a new trial is not tantamount to an acquittal but is instead “the
equivalent of a mistrial caused by a hung jury.” (Id.
at p. 133.) As such, it did not bar
retrial on double jeopardy grounds. (>Ibid.)
Nor did Apprendi convert the
challenged enhancement allegations into elements of greater offenses for
purposes of the statutory double jeopardy protection of section 1023. (Porter,
at p. 138.) Thus, Porter’s conviction of
the underlying offenses did not bar retrial of the enhancement allegations. (Ibid.)

Neither Anderson
nor Porter says anything about
whether an enhancement allegation can be retried by itself in a purported new
action after the case that decided
the underlying offense is over. Both
cases are inapposite.

The Attorney General claims the trial court complied with
this court’s directives by granting Rios’s motion to dismiss and resentencing
him without enhancements in the original
case. She asserts that this court
“did not preclude the People from refiling the enhancement allegations in a
complaint in a new case.” We reject the contention. This court clearly intended the case to be
over if the People failed to retry Rios within 60 days—that is why the court
provided for resentencing without enhancements at the expiration of the 60-day
period. As Rios correctly points out,
moreover, the People did not file “a new case.”
Instead, they filed “an unheard of document containing only enhancement
allegations.” Enhancement allegations
are not offenses that can be charged all by themselves. (See Cal. Rules of Court, rule 4.405(3)
[defining “ ‘[e]nhancement’ ” as “an additional term of imprisonment
added to the base term”].) As the
California Supreme Court has explained, “[u]nder California law, a sentencing
enhancement or penalty allegation is not a complete offense in itself. It is ‘separate from the underlying offense .
. . .’ [Citation.] Conceptually, a penalty provision is an
appendage that attaches to an offense and, if proven, prescribes additional
punishment for the crime. [Citation.]” (Anderson,
supra, 47 Cal.4th at p. 115.) “In California, ‘sentence enhancements are
not “equivalent” to, nor do they “function” as, substantive offenses.’ ”
(Id. at p. 118.) In sum, the People have failed to identify
any legal basis for prosecuting enhancement allegations by themselves in a
purported new action after the case
that decided the underlying offenses has concluded. There is none.

This court’s original opinion unambiguously directed the
trial court either to retry Rios
“within 60 days after the filing of the remittitur in the trial court” >or to resentence him without
enhancements. This wording cannot be
interpreted to permit trial on the enhancement allegations after 60 days. At the
expiration of the 60-day period, only one option remained: to resentence Rios without enhancements. (>Hampton, supra, 38 Cal.2d at p. 655.)
When the trial court finally resentenced Rios, the case against him was
over. It was error for the trial court
to exceed this court’s directives. (>Palma, supra, 36 Cal.3d at p. 180; Lewis,> supra, 19 Cal.4th at pp. 1240-1241.)

In limited situations, an appellate court may issue a
peremptory writ in the first instance without issuance of an alternative writ
or order to show cause and without providing an opportunity for oral
argument. (Code Civ. Proc., § 1088; >Lewis, supra, 19 Cal.4th at pp.
1252-1253.) “A court may issue a
peremptory writ in the first instance ‘ “only
when petitioner’s entitlement to relief is so obvious that no purpose could
reasonably be served by plenary consideration of the issue—for example, when .
. . there has been clear error under well-settled principles of law and
undisputed facts . . . .” [Citation.]’ ” (Lewis, at p. 1241.) However,
Code of Civil Procedure section 1088 “ ‘ “requires,
at a minimum, that a peremptory writ of mandate . . . not issue in the first
instance unless the parties adversely affected by the writ have received notice
. . . that the issuance of such a writ in the first instance is being sought or
considered. In addition, an appellate
court, absent exceptional circumstances, should not issue a peremptory writ in
the first instance without having received, or solicited, opposition from the
party or parties adversely affected . . . .” ’ ” (Lewis,
at pp. 1240-1241.)

The procedural requirements have been satisfied here. The applicable principles of law are well
established, the relevant facts are undisputed, and Rios’s entitlement to
relief is so obvious that plenary consideration of the issues is
unnecessary. (Lewis, supra,
19 Cal.4th at p. 1241.)
Issuance of a peremptory writ of mandate in the first instance is
appropriate.



III. DISPOSITION

Let a peremptory writ of mandate issue directing respondent
court (1) to vacate its November 30, 2011 order overruling Rios’s demurrer to
the enhancement allegations, (2) to enter a new order sustaining the demurrer
in its entirety without leave to amend, and (3) to enter a judgment of
dismissal. Upon finality of this
decision, the temporary stay order is vacated.









_______________________________

Mihara,
J.







WE CONCUR:













______________________________

Premo, Acting P. J.













______________________________

Márquez, J.