Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F00788
Bamattre-Manoukian, J.
I. INTRODUCTION
After a jury trial, petitioner Luis Daniel Rios was convicted of three counts of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and one count of shooting from a motor vehicle (§ 12034, subd. (c)). (People v. Rios (Sept. 2, 2010, H034085) [nonpub. opn.] (Rios I).) The jury also found true the allegations that Rios had inflicted great bodily injury or death as a result of discharging a firearm from a motor vehicle (§ 12022.55).
All statutory references hereafter are to the Penal Code unless otherwise indicated.
On appeal, this court reversed the true findings on the section 12022.55 enhancement allegations and remanded the matter with the “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.”
After remand, the People failed to retry the section 12022.55 enhancement allegations within 60 days after the remittitur was filed in the trial court on December 20, 2010. Rios subsequently moved to dismiss the enhancement allegations. The trial court denied Rios’s motion without prejudice on February 28, 2011, and set a hearing date for trial setting. Rios filed a petition for writ of mandate in this court, in which he seeks issuance of a peremptory writ of mandate directing the trial court to set aside its order of February 28, 2011, denying his motion to dismiss the enhancement allegations and to follow the resentencing instructions in the remittitur issued in Rios I, supra, H034085.
For reasons that we will explain, we determine that the trial court’s order of February 28, 2011 constitutes “ ‘clear error under well-settled principles of law and undisputed facts.’ ” (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1258 (Lewis).) Therefore, we will issue a peremptory writ in the first instance directing the trial court to (1) vacate the February 28, 2011 order denying Rios’s motion to dismiss the enhancement allegations; (2) enter a new order granting the motion; and (3) resentence Rios as directed in the remittitur issued in Rios I, supra, H034085.
II. FACTUAL AND PROCEDURAL BACKGROUND
We take judicial notice of this court’s prior opinions in related appeals, including People v. Garcia (Apr. 28, 2005, H026159) [nonpub. opn.], Rios I, supra, H034085, and People v. Rios (Oct. 7, 2010, H034481) [nonpub. opn.] (Rios II). (Evid. Code, § 452, subd. (d)(1).) Our summary of the pertinent procedural background includes some information that we have taken from these prior opinions.
A. Factual Background
On May 26, 2000, Rios, along with his friends Javier Villalobos, Jesus Salazar, and Salvador Garcia, drove to a dance at the Veteran’s Hall in Santa Cruz. After parking, Rios and his friends became involved in an altercation with several individuals who Rios recognized as Sureño gang members. As the altercation continued, Rios and his friends were attacked and beaten.
At some point, Rios and his friends left the scene of the altercation and drove to a convenience store. There, several of the previous attackers approached and hit Salazar’s car with sticks, cracking the windshield. Rios came out of the store and threw a bottle, hitting a man in the head who then fell to the ground. After that, Rios and his friends returned to Watsonville, where they obtained another vehicle and a gun with a magazine clip containing nine to 12 bullets.
Next, Rios and his friends drove back to Santa Cruz, with Rios as a passenger. After arriving, they turned into Bixby Street and became surrounded by people who looked like gang members. According to Rios, he was afraid of another assault by the same group who had attacked them at the Veterans’ Hall. Rios panicked, got the gun, and shot it from the window of the car. Rios testified that he was not trying to kill anyone; instead, he was trying to make people leave. Santa Cruz police officers responded to the scene after hearing gunshots. They found three men on the ground with fatal gunshot wounds.
B. Procedural Background
1. Prior Appeals
Rios and codefendants Salvador Garcia and Jesus Salazar were each charged by information in counts 1, 2 and 3 with murder with special circumstances allegations of multiple murder and drive-by shooting. (§§ 187, subd. (a), 190.2, subds. (a)(3) & (21).) Following a jury trial, the defendants were acquitted of first- and second-degree murder and convicted in counts 1, 2 and 3 of the lesser-included offense of involuntary manslaughter (§ 192). The jury found true the allegations that Rios was personally armed with a firearm during the commission of the involuntary manslaughter counts within the meaning of section 12022.55, but found not true the same allegation attached to count 5, in which the jury found Rios guilty of discharging a firearm from a motor vehicle. On appeal, this court determined that the trial had erred in refusing to instruct the jury on self-defense, and reversed the judgment. (People v. Garcia, supra, H026159.) The matter was remanded for further proceedings.
After a second trial, Rios was found guilty of three counts of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and one count of shooting from a motor vehicle (§ 12034, subd. (c)). (Rios I, supra, H034085.) The jury also found true the allegations that Rios had inflicted great bodily injury or death as a result of discharging a firearm from a motor vehicle (§ 12022.55). (Rios I, supra, H034085.) Rios was sentenced to a total prison term of 18 years.
On appeal in Rios I, this court determined that the trial court had erred when it instructed the jury regarding the section 12022.55 enhancement allegations and struck the true finding on those allegations. The disposition in the Rios I opinion states, “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.” (Rios I, supra, H034085.) The remittitur in Rios I was filed in the respondent superior court on December 20, 2010.
In Rios II, Rios, Garcia, and Salazar filed a separate appeal in which they challenged the joint and several victim restitution order in the amount of $270,062.97. (Rios II, supra, H034481.) This court reversed the restitution order and remanded the matter for a new restitution hearing. The remittitur in Rios II was filed in the respondent superior court on December 8, 2010.
2. Defendant’s Motion to Dismiss
The People did not retry the section 12022.55 enhancement allegations within 60 days after the remittitur in Rios I, supra, H034085, was filed in the trial court on December 20, 2010. During the hearing held on February 28, 2011, defense counsel made an oral motion for dismissal of the enhancement allegations as follows: “Your Honor, I’m going to ask that the special allegations be dismissed in accordance with the Court of Appeal’s decision. 60 days has elapsed. No action was taken by the District Attorney’s office and therefore in accordance with the instructions on remand by the Sixth District, it needs to be dismissed and the Court needs to resentence at this time.”
The prosecutor opposed the motion to dismiss the enhancement allegations on the ground that, under sections 1187 and 1265, the reversal in Rios I, supra, H034085, placed Rios in the same situation that he was in before the new trial was ordered, and therefore his prior time waiver was still in effect. The prosecutor also argued that there was no prejudice to Rios since he was still serving his sentence.
The trial court determined that the remittiturs in Rios I and Rios II had returned jurisdiction to the court and denied Rios’s motion to dismiss the enhancement allegations, stating, “For the record, again I’m denying [because] the Court already has jurisdiction. The case was back before the Court and there’s no assertion of time. And no efforts made to assert going to trial. I’ll make my ruling on that.” The trial court then set a hearing date of March 4, 2011, for trial setting.
C. Writ Proceedings
Rios filed a petition for a writ of mandate in this court on April 6, 2011, in which he sought issuance of a peremptory writ of mandate directing the trial court to set aside its order of February 28, 2011, denying his motion to dismiss the enhancement allegations and to follow the resentencing instructions in the remittitur in Rios I, supra, H034085. Rios also requested a temporary stay of trial court proceedings.
On April 12, 2011, we issued an order staying the retrial on the section 12022.55 enhancement allegations until further order of this court and notifying the parties that we were considering issuing a peremptory writ in the first instance pursuant to Palma v. U.S. Industrial Fastners, Inc. (1984) 36 Cal.3d 171, 180 (Palma), and Lewis, supra, 19 Cal.4th at pp. 1240-1241. We also gave the People, as the real party in interest, the opportunity to file opposition to the petition for writ of mandate and allowed Rios to file a reply.
Having received the parties’ briefing, we turn to the merits of Rios’s petition for writ of mandate.
III. DISCUSSION
In his petition, Rios contends that the trial court erred in denying his motion to dismiss the enhancement allegations because the court was empowered only to act in accordance with the remittitur in Rios I, supra, H034085, by dismissing the section 12022.55 enhancement allegations and resentencing him on the substantive charges, since the People failed to retry the enhancement allegations within 60 days after the remittitur was filed in the trial court. Rios further contends that the People’s failure may not be excused by any lack of notice of the remittitur, and, contrary to the People’s position, retrial of the enhancement allegation is not authorized under section 1187 or section 1265.
Section 1187 provides, “The effect of an order arresting judgment, in a felony case, is to place the defendant in the same situation in which the defendant was immediately before the indictment was found or information filed. In a misdemeanor or infraction case, the effect is to place the defendant in the situation in which the defendant was before the trial was had.
Section 1265, subdivision (a) provides, “After the certificate of the judgment has been remitted to the court below, the appellate court has no further jurisdiction of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted. However, if a judgment has been affirmed on appeal no motion shall be made or proceeding in the nature of a petition for a writ of error coram nobis shall be brought to procure the vacation of that judgment, except in the court which affirmed the judgment on appeal. When a judgment is affirmed by a court of appeal and a hearing is not granted by the Supreme Court, the application for the writ shall be made to the court of appeal.”
In their opposition to the petition, the People state that “[we] agree that a writ of mandate should issue to compel dismissal of these enhancement allegations, but we do not agree further proceedings on the [section] 12022.55 allegations should be foreclosed.” Explaining that the remittitur in Rios I, supra, H034085, directed the trial court to retry or dismiss the enhancement allegations in compliance with section 1382, subdivision 2, the People argue that section 1382, together with section 1387, provide statutory authorization for the refiling of enhancement allegations after a prior dismissal.
Section 1382, subdivision (a) provides in part, “(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [¶]... [¶] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, or, in case the cause is to be tried again following a mistrial, an order granting a new trial from which an appeal is not taken, or an appeal from the superior court, within 60 days after the mistrial has been declared, after entry of the order granting the new trial, or after the filing of the remittitur in the trial court, or after the issuance of a writ or order which, in effect, grants a new trial, within 60 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney....”
Section 1387, subdivision (a) provides, “(a) An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not charged together with a felony, except in those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds any of the following....”
Our resolution of the issue is governed by California Supreme Court authority, which 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.]” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701; Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5; Hampton v. Superior Court (1952) 38 Cal.2d 652, 656 (Hampton).)
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.]” (Hampton, supra, 38 Cal.2d at p. 655; see also Rice v. Schmid (1944) 25 Cal.2d 259, 263.) 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.]” (Puritan Leasing Co. v. Superior Court (1977) 76 Cal.App.3d 140, 147.)
The trial court’s failure to follow the appellate court’s directions in the remittitur may be challenged by “an immediate petition for writ of prohibition or writ of mandate. [Citations.]” (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982 (Butler).) A peremptory writ in the first instance under Palma is appropriate where there is “no other conclusion” but that the trial court’s order “materially departed” from the appellate court’s directions on remand. (Butler, supra, 104 Cal.App.4th at pp. 982-983.)
In Butler, the appellate court reversed the judgment in a personal injury action and issued a remittitur with directions to the trial court to enter a new judgment in accordance with the evidence presented at the default prove-up hearing. (Butler, supra, 104 Cal.App.4th at p. 981.) The trial court instead granted a motion for reconsideration and allowed additional evidence to be presented. (Ibid.) Finding that the trial court had effectively reopened the case and allowed a new trial, the Butler court issued a peremptory writ in the first instance directing the trial court to vacate its order granting reconsideration, issue a new order denying the motion, and comply with the remand directions. (Id. at pp. 982-983.)
The present case is similar to Butler. This court’s remittitur in Rios I, supra, H034085 (as stated in the disposition in the Rios I opinion attached to the remittitur), expressly remanded the case “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.” (Rios I, supra, H034085.) It is undisputed that the People did not attempt to retry the enhancement allegations within the 60 days period after the Rios I remittitur was filed in the trial court on December 20, 2010. Nevertheless, on February 28, 2011, the trial court denied Rios’s motion to dismiss the enhancement allegations and set a hearing date for trial setting. The trial court’s order did not conform to this court’s directions in Rios I and is therefore void. We reiterate the California Supreme Court’s instruction that “[t]he 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.]” (Hampton, supra, 38 Cal.2d at p. 655.)
We do not 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. That 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.
Since it is obvious that the trial court’s order of February 28, 2011 does not conform with this court’s directions in Rios I, we have considered whether a peremptory writ in the first instance is appropriate to correct the error expeditiously. (Butler, supra, 104 Cal.App.4th at pp. 982-983.)
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 of Civ. Proc., § 1088; Lewis, supra, 19 Cal.4th at pp. 1252-1253; see also Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1241 [describing the “accelerated procedure”].) “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 such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts—or where there is an unusual urgency requiring acceleration of the normal process....” [Citation.]’ ” (Lewis, supra, 19 Cal.4that p. 1241.)
However, Code of Civil Procedure section 1088 “ ‘ “requires, at a minimum, that a peremptory writ of mandate or prohibition not issue in the first instance unless the parties adversely affected by the writ have received notice, from the petitioner or from the court, 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, supra, 19 Cal.4th at p. 1240.)
All procedural requirements for issuance of a peremptory writ in the first instance have been complied with in the present case. We notified the parties that we were considering issuance of a peremptory writ of mandate in the first instance, and the People filed a written response in which they “agree that a writ of mandate should issue to compel dismissal of these enhancement allegations, but... do not agree further proceedings on the [section] 12022.55 allegations should be foreclosed.” The applicable principles of the law are well established, the relevant facts are undisputed, and, as we have discussed, Rios’s entitlement to relief from the trial court’s February 28, 2011 order is so obvious that plenary consideration of the issues is unnecessary. (Lewis, supra, 19 Cal.4th at p. 1241 .) Accordingly, we will grant the petition for writ of mandate in the first instance.
IV. DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to (1) vacate the order of February 28, 2011, denying Rios’s motion to dismiss the Penal Code section 12022.55 enhancement allegations; (2) enter a new order granting the motion; and (3) resentence Rios as directed in the remittitur issued in Rios I, supra, H034085. Upon finality of this decision, the temporary stay order is vacated.
WE CONCUR: PREMO, ACTING P.J.DUFFY, J.