Filed 5/17/19 Sotomayor v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIDENCIO SOTOMAYOR,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

G056532

(Super. Ct. No. 01CF0152)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Petition denied.

Sharon Petrosino, Public Defender, Sara Ross, Assistant Public Defender, Alison Worthington and Hans Corteza, Deputy Public Defenders, for Petitioner.

Todd Spitzer and Tony Rackauckas, District Attorneys, and Matthew Lockhart, Deputy District Attorney, for Real Party in Interest.

Fidencio Sotomayor challenges the trial court’s order denying his petition for writ of mandate to vacate his conviction pursuant to People v. Rodriguez (2012)

55 Cal.4th 1125. Sotomayor argues, and the Orange County District Attorney (OCDA) concedes, the court erred by denying the petition because Sotomayor acted alone. As we explain below, mandate was not the proper vehicle to seek relief and although based on the record before us it appears Sotomayor is entitled to relief, we decline to suggest to the parties what might be a better vehicle. We deny the petition.

FACTS

Officers responded to a residence regarding a complaint of a disturbance and possible drug activity; officers had responded to the residence on previous occasions for reports of criminal activity. As officers walked towards the residence they saw two vehicles (a sedan and a truck) illegally parked in front of the residence. They saw two women inside the sedan. The garage door was partially open and a light was on, and officers saw movement inside the garage. As officers walked toward the residence they saw Sotomayor walking away from the house; he was alone. Sotomayor walked away from the officers and stopped behind a truck where he bent down and stood up. Officers detained Sotomayor and found a loaded .357 caliber revolver on the ground under the truck. Officers later found a hypodermic syringe in his coat pocket. Sotomayor was on gang probation.

The officers detained the two women in the sedan and two people who were in the garage. The house’s resident exited the house, and officers detained him. The officers found several women inside the residence and two males hiding in the backyard.

In April 2001, Sotomayor pleaded guilty to being a gang member carrying a loaded firearm (Pen. Code, § 12031, subds. (a)(1), (2)(C), all further statutory references are to the Penal Code, unless otherwise indicated), and admitted the prior (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1); the prosecutor dismissed the other charge. The factual basis for his plea was he unlawfully possessed a loaded firearm in public while being an active participant in Varrio Modena Locos. The trial court sentenced Sotomayor to two years in prison.

At the time, there was California case authority that held section 186.22, subdivision (a), prohibited criminal conduct by gang members who act alone. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1308; People v. Salcido (2007) 149 Cal.App.4th 356, 368.) In 2012, the California Supreme Court issued its decision in People v. Rodriguez (2012) 55 Cal.4th 1125, 1132 (Rodriguez), in which it overruled those cases and held a gang member does not violate section 186.22, subdivision (a), if he acts alone.

In February 2018, Sotomayor filed a petition for writ of mandate in the Orange County Superior Court to vacate his conviction pursuant to Rodriguez. He supported his petition with exhibits—two police reports.

The trial court ordered the OCDA to show cause by filing a return. The court invited the OCDA and Sotomayor, in his reply, to address whether reduction of the felony to a misdemeanor was appropriate. In its return, the OCDA admitted Sotomayor committed the offense without the presence of another member of his criminal street gang and he was entitled to relief. In his reply, Sotomayor requested the court issue a ruling.

Acknowledging the parties agreed the conviction should be vacated, the trial court denied Sotomayor’s petition because “the supporting evidence [was] insufficient” to establish Sotomayor acted alone or that the people he was with were not in his gang. After reciting the facts, the court explained the evidence established others were present at the residence and the court “ha[d] no way of knowing” whether any of them claimed membership in Sotomayor’s gang. The court added, “If [Sotomayor] wishes to litigate the matter further, the [OCDA] is ordered to bring with it all information regarding this case and, to the extent available to the parties, the identity and gang affiliation, if any, of the other individuals present.” The court stated the parties could respond with an order to show cause (OSC) why the court should grant the petition.

Sotomayor filed a petition for writ of mandate in this court. We denied the petition. (Sotomayor v. Superior Court (July 26, 2018, G056532) [nonpub. order].) Sotomayor filed a petition for review with the California Supreme Court. The Supreme Court granted review and transferred the matter back to this court with directions to vacate our order denying mandate and to issue an alternative writ. (Sotomayor v. Superior Court, review granted Sept. 19, 2018, S250358.) In compliance with the Supreme Court’s order, we issued an alternative writ of mandate, vacating our order of July 26, 2018, and directing the respondent court to vacate its order of May 10, 2018, and to enter a new order granting the petition. The respondent court declined to comply with the writ’s directive to vacate its prior order and to enter a new one. We ordered the OCDA to file a return and invited Sotomayor to file a reply. The OCDA filed its return, again conceding the issue. Consequently, Sotomayor did not file a reply.

DISCUSSION

Code of Civil Procedure section 1085, subdivision (a), provides, “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” (Italics added.)

Here, a petition for writ of mandate was not the proper vehicle for Sotomayor to seek to have his conviction vacated. Even after trial court unification, the distinction between magistrates and superior court judges remains valid. (People v. Henson (2018) 28 Cal.App.5th 490, 508.) When a defendant pleads guilty before a magistrate, the magistrate certifies the case to the superior court for pronouncement of judgment. (§ 859a; People v. Figueroa (2017) 11 Cal.App.5th 665, 678; see People v. Richardson (2007) 156 Cal.App.4th 574, 591 (Richardson) [when person who acted as both magistrate and superior court judge pointless to certify case to herself].) Only a superior court judge can pronounce judgment on a felony. (Richardson, supra,

156 Cal.App.4th at p. 591; see People v. Wilson (1947) 78 Cal.App.2d 108, 120 [superior court only court with jurisdiction for prosecutions where punishment prison].)

There is authority for the proposition a magistrate is an inferior tribunal (People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 802-803 [disqualification of magistrate]; People v. Superior Court (Chico etc. Health Center) (1986) 187 Cal.App.3d 648, 650 [return of business records]). When Judge James A. Stotler accepted the guilty plea he was sitting as a magistrate. However, when he pronounced judgment, he was sitting as a superior court judge because only a superior court judge can pronounce judgment on a felony. A petition for writ of mandate may be issued by any court to an inferior tribunal. In his petition for writ of mandate, Sotomayor sought to have superior court judge Kimberly Menninger vacate the felony judgment superior court judge Stotler imposed. This was improper.

A superior court judge cannot mandate another superior court judge to vacate a judgment because the superior court judge who pronounced judgment is not an inferior tribunal. “The superior court does not have the authority or jurisdiction to issue mandamus or prohibition against itself. ‘Mandamus or prohibition may be issued only by a court to another court of inferior jurisdiction.’ [Citations.]” (People v. Davis (2014) 226 Cal.App.4th 1353, 1371; Ford v. Superior Court (1986) 188 Cal.App.3d 737, 742 [“One department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court”].) Although “every right must have a remedy[]” (People v. Picklesimer (2010) 48 Cal.4th 330, 339), a petition for writ of mandamus was not the proper vehicle for Sotomayor to seek to vacate his conviction.

At oral argument, counsel discussed a number of alternatives to obtain relief. It is not our role to weigh in on what may be the proper vehicle for relief. (In re Campbell (2017) 11 Cal.App.5th 742, 757 [not court’s role to instruct counsel how to litigate cases].) In response to a question, the OCDA deputy district attorney (DDA) conceded that in this court a petition for writ of mandate was the proper vehicle to grant relief. We cannot accept a concession on a matter which the law prohibits us from ordering.

Our conclusion a petition for writ of mandate was not the proper vehicle does not mean Sotomayor was not entitled to relief. A prosecutor must prove each element of the crime beyond a reasonable doubt. (People v. Cole (2004) 33 Cal.4th 1158, 1208.) If a prosecutor does not believe he can prove his case, he cannot ethically proceed. (People v. Municipal Court (1972) 27 Cal.App.3d 193, 205-206.)

In his return to this court, the DDA stated that since 2013 he was the “sole representative” litigating Rodriguez petitions, he had litigated over 200 Rodriguez petitions, and he had dismissed Rodriguez prior convictions in over 50 cases. He explained his habit and practice was to review all the police reports to determine whether the petitioner promoted, furthered, or assisted any felonious conduct of a fellow member of his gang. The DDA added that when the petitioner committed the crime with another person, he researched that person’s background and carefully considered whether he was a member of the petitioner’s gang. He stated that when there was no evidence that person was a member of petitioner’s gang, he conceded the petition has merit. The DDA concluded, “When the [OCDA] concede[s] a Rodriguez writ it is because there is no evidence to support the charge.”

Here, the OCDA conceded there was no evidence to support the charge Sotomayor promoted, furthered, or assisted any felonious conduct of a fellow member of his gang. Based on the OCDA’s concession he could not prove all the elements of section 186.22, subdivision (a), Sotomayor was entitled to relief but not by a petition for writ of mandate.

DISPOSITION

Petition denied without prejudice to Sotomayor moving to withdraw his plea and vacate the judgment or seek other appropriate relief.

.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

FYBEL, J.