Rios v. Super. Ct.
Petitioner Luis Daniel Rios was convicted of four felony counts. Three Penal Code section 12022.55[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 judgment of dismissal.
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