Molina v. Superior Court

smoking marijuana. When police arrived they saw a woman walk from the park to a car, retrieve a jacket, and walk back into the park where she sat at a table with Molina and another man. Police officers walked by the car and saw a 40-caliber cartridge on the armrest. A search of the car revealed a loaded 40-caliber pistol magazine and a 40-caliber semiautomatic pistol in the glove compartment. A search of the man revealed a small bag of marijuana. The man admitted to an officer he "kick[ed] it with Smalltown gang." The man told an officer that when he picked up Molina, Molina had a loaded gun, and after the man unloaded the gun, the man put it in the glove compartment. Molina confirmed the man's story, but explained he was holding the gun for a friend. Officers arrested Molina and the man. Further investigation revealed Molina was an active member of the "Prestige" and "Logan" street gangs.

In 2002, Molina pleaded guilty to being an active participant in a criminal street gang and carrying a concealed firearm in a vehicle (

sufficient evidence presented at this point for a conclusion that the three were not members, associates or individuals who claimed membership in a gang, or that they were allied in any way. What is clear from the statements of [Molina] and co-defendant Valtierra is that they were at the table vandalizing

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, Molina sought to have superior court judge Kimberly Menninger vacate the felony judgment superior court judge Singer 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, 172 Cal.Rptr.3d 714 ; Ford v. Superior Court (1986) 188 Cal.App.3d 737 , 742, 233 Cal.Rptr. 607 ["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, 106 Cal.Rptr.3d 239 , 226 P.3d 348 ), a petition for writ of mandamus was not the proper vehicle for Molina 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, 217 Cal.Rptr.3d 752 [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 is contrary to law.

Our conclusion a petition for writ of mandate was not the proper vehicle does not mean Molina 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, 17 Cal.Rptr.3d 532 , 95 P.3d 811 .) 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, 103 Cal.Rptr. 645 .)

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

the judgment or seek other appropriate relief.

WE CONCUR:

BEDSWORTH, J.

FYBEL, J.

it, in possession of a firearm and ammunition. If [Molina] wishes to litigate this further, the [OCDA] is ordered to bring with it all information regarding this case and the gang affiliation of the [three] individuals present at the time of this offense." (Italics added.) The court stated the parties could respond with an order to show cause (OSC) why the court should grant the petition.

Molina filed a petition for writ of mandate in this court. We denied the petition. ( Molina v. Superior Court (July 26, 2018, G056530) [nonpub. order].) Molina 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. ( Molina v. Superior Court , review granted Sept. 19, 2018, S250324.) 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 7, 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. The OCDA filed its return, again conceding the issue. Consequently, Molina 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 Molina 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, 239 Cal.Rptr.3d 305 .) 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, 218 Cal.Rptr.3d 104 ; see People v. Richardson (2007) 156 Cal.App.4th 574 , 591, 67 Cal.Rptr.3d 552 ( 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, 67 Cal.Rptr.3d 552 ; see People v. Wilson (1947) 78 Cal.App.2d 108 , 120, 177 P.2d 567 [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, 123 Cal.Rptr.2d 31 , 50 P.3d 743 [disqualification of magistrate]; People v. Superior Court (Chico etc. Health Center) (1986) 187 Cal.App.3d 648 , 650, 232 Cal.Rptr. 165 [return of business records] ). When Judge Carla M. Singer accepted the guilty plea she was sitting as a magistrate. However, when she pronounced judgment, she was sitting as a

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 Molina 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), Molina was entitled to relief but not by a petition for writ of mandate.

DISPOSITION

Petition denied without prejudice to Molina moving to withdraw his plea and vacate