Opinion
B313730
04-07-2022
RAYMOND GONZALEZ, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, THE PEOPLE, Real Party in Interest.
Erika Anzoategui, Alternate Public Defender of Los Angeles County, Brock Hammond and Alex Sario, Deputy Alternate Public Defenders, for Petitioner. George Gascón, District Attorney of Los Angeles County, Tracey Whitney, Deputy District Attorney, for Real Party in Interest. Steve Cooley & Associates, Steve Cooley; Brentford Ferreira; Dordulian Law Group, Kathleen Cady for Amici Curiae Crime Victims.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Superior Court of Los Angeles County, No. KA117722 Rob B. Villeza, Judge. Petition denied.
Erika Anzoategui, Alternate Public Defender of Los Angeles County, Brock Hammond and Alex Sario, Deputy Alternate Public Defenders, for Petitioner.
No appearance for Respondent.
George Gascón, District Attorney of Los Angeles County, Tracey Whitney, Deputy District Attorney, for Real Party in Interest.
Steve Cooley & Associates, Steve Cooley; Brentford Ferreira; Dordulian Law Group, Kathleen Cady for Amici Curiae Crime Victims.
BAKER, J.
Petitioner Raymond Gonzalez (petitioner) asks us to grant extraordinary writ relief and hold a trial court, having first agreed to dismiss special circumstance and enhancement allegations against him in a criminal information, may not reconsider that dismissal order several months later on its own motion-at least in the absence of a request for reconsideration by the prosecution. We consider whether extraordinary relief should issue to decide such a question.
I. BACKGROUND
In late 2019, Los Angeles County District Attorney Jackie Lacey filed an information charging petitioner with two counts of murder (Pen. Code, § 187, subd. (a)) and one count of carjacking (§ 215, subd. (a)). The information alleges two special circumstances in connection with each of the murder charges: multiple murder (§ 190.2, subd. (a)(3)) and murder committed during the course of a robbery (§ 190.2, subd. (a)(17)(A)). As to all counts, the information alleges the crimes are gang related (§ 186.22, subd. (b)). Firearms enhancements (§ 12022.53, subds. (b)-(d)) are also alleged.
Undesignated statutory references that follow are to the Penal Code.
Four months after the information was filed, and in accordance with newly-elected Los Angeles County District Attorney George Gascón's Special Directives 20-08, 20-08.1, and 20-14, the People filed a motion to dismiss the enhancements and special circumstances alleged against petitioner. Dismissal was sought via a motion because section 1386 prohibits a prosecutor from "discontinu[ing] or abandon[ing] a prosecution for a public offense, except as provided in Section 1385." Section 1385, in turn, authorizes only a judge to dismiss an action "in furtherance of justice" and requires the judge to state the reasons for any dismissal. (§ 1385, subd. (a).)
The People's motion did not make a case-specific argument for why dismissal was "in furtherance of justice." Instead, it quotes Special Directive 20-08.1, by which District Attorney Gascón requires his deputies to make the following record in all pending cases in which sentencing enhancements or special circumstances are alleged: "The People move to dismiss and withdraw any strike prior (or other enhancement) in this case. We submit that punishment provided within the sentencing triad of the substantive charge(s) in this case are sufficient to protect public safety and serve justice. Penal Code section 1385 authorizes the People to seek dismissal of all strike prior(s) (or other enhancements) when in the interests of justice. Supreme Court authority directs this Court to determine those interests by balancing the rights of the defendant and those of society 'as represented by the People.' The California Constitution and State Supreme Court precedent further vest the District Attorney with sole authority to determine whom to charge, what charges to file and pursue, and what punishment to seek. That power cannot be stripped from the District Attorney by the Legislature, Judiciary, or voter initiative without amending the California Constitution. It is the position of this office that Penal Code section 1170.12(d)(2) and Penal Code 667(f)(1) are unconstitutional and infringe on this authority. Additional punishment provided by sentencing enhancements or special allegations provide no deterrent effect or public safety benefit of incapacitation-in fact, the opposite may be true, wasting critical financial state and local resources."
Copies of the Special Directives were filed with the motion. Special Directive 20-08 sets forth the District Attorney's position that sentencing enhancements and allegations should be dismissed because "[t]here is no compelling evidence" that enhancements improve public safety and "[i]n fact, the opposite may be true," as research shows that "each additional sentence year causes a 4 to 7 percent increase in recidivism." Notwithstanding the Special Directives, the deputy district attorney (DDA) filing the motion made clear to the trial court that he did not personally believe the motion was appropriate or well-founded in this case, as he felt there was "more than sufficient evidence" to obtain a true finding on the special circumstance allegations, as well as on the firearm and gang enhancements.
After hearing oral statements from the victims' families, the trial court granted the motion to dismiss on January 19, 2021. In doing so, it said, "[T]he People are not asking the court to dismiss based on the law, the facts, the evidence in this case, or the pain and suffering of the victims' families. [¶] Instead, it wishes the court to dismiss based upon the notion of separation of powers and the discretion of the district attorney to choose which charges and allegations it wishes to proceed on in this case. [¶] For that reason alone and despite the facts and evidence that [the DDA] says supports the allegations and the views of the victims['] families, the motion to dismiss the special circumstances and allegations . . . is granted." The court deferred the motion to dismiss the gun enhancements until sentencing pursuant to sections 12022.5, subdivision (c), and 12022.53, subdivision (h), which both read, "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (Italics added.)
Two months later, on March 21, 2021, the victims' families filed a request that the court reconsider its ruling granting the People's motion to dismiss. They argued the prosecution is only authorized to recommend dismissal of charges and allegations, whereas the court must determine whether dismissal is in the interests of justice before deciding whether to grant or deny the motion. They noted the trial court, in granting the People's motion, relied solely on the doctrine of separation of powers and did not set forth reasons why dismissal was in the interest of justice as required by section 1385.
The trial court concluded the victims were not a party to the prosecution and had no standing to bring the motion. (See generally Dix v. Superior Court (1991) 53 Cal.3d 442, 450, 450-451 ["[N]either a crime victim nor any other citizen has a legally enforceable interest, public or private, in the commencement, conduct, or outcome of criminal proceedings against another" because "the victim of the crime is not a party"].) But the trial court stated it would exercise its authority, on its own motion, to reconsider the dismissal order.
The trial court vacated its prior dismissal order, reinstated the special circumstance and gang allegations, and denied the People's motion to dismiss. It concluded the policy considerations set forth in District Attorney Gascón's Special Directives did not provide a legal basis for concluding dismissal was in the interest of justice because they did not provide for due consideration of the facts of this case or petitioner's particular circumstances. The prior dismissal order was erroneous, the trial court reasoned, "because it did not consider any specific case facts or evidence but rather erroneously applied the separation of powers doctrine when it should have determined whether dismissal was in 'furtherance of justice,' as required by section 1385." The trial court continued: "If the prosecutor's policy preferences alone were deemed sufficient to justify dismissal of an existing charge or enhancement, then section 1385 would not require the court to find that dismissal would be in furtherance of justice. [¶] In fact, as pointed out by the prosecutor in this case, and as established by the findings after preliminary hearing, the evidence described in the People's motion amply supports the special circumstance and sentence enhancement allegations. The defendant is accused of shooting to death two men while they were sleeping, to steal money one of the victims collected in an insurance settlement. He then used the gun to carjack a mini-van to transport and dump the bodies in the desert. The People offer no mitigating facts or personal circumstances of the defendant to support the dismissal motion."
After the trial court reinstated the special circumstances and gang allegations, petitioner filed a writ petition in this court asking us to decide whether the trial court "possesses the authority to unilaterally revisit a dismissal order and re-impose previously dismissed enhancements without the request or permission from the [People]." We summarily denied the petition, stating petitioner has an adequate remedy by way of appeal after any adverse judgment. Our Supreme Court granted review and directed us to instead issue an order to show cause why the relief sought in the petition should not be granted. We did so, and received additional briefing, including a letter from District Attorney Gascón stating we should grant the petition, an amicus brief from counsel for the victims of petitioner's alleged crimes, and a response to that amicus brief from petitioner and the District Attorney.
II. DISCUSSION
Our Supreme Court's remand order directed this court to "vacate its order denying mandate and . . . issue an order directing the respondent superior court to show cause why the relief sought in the petition should not be granted." We have done so. Upon review of all the additional briefing in this matter, hearing oral argument, and further due consideration, we remain of the view that there exists an adequate remedy by way of appeal after any adverse final judgment such that extraordinary writ relief should be denied. We shall explain.
Petitioner urges us to issue a peremptory writ of mandate commanding the trial court to vacate its order and enter a new order acquiescing in District Attorney Gascón's request to dismiss the enhancements. Such extraordinary writ relief is available only "where there is no plain, speedy, and adequate remedy in the ordinary course of law." (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497; see also In re Cook (2019) 7 Cal.5th 439, 452 [availability of a "plain, speedy, and adequate remedy at law" made resort by the defendant to a request for a writ of habeas corpus unnecessary]; Phelan v. Superior Court (1950) 35 Cal.2d 363, 366 ["Section 1086 of the Code of Civil Procedure provides that the writ of mandate 'must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' Although the statute does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner. [Citations.] The burden, of course, is on the petitioner to show that he did not have such a remedy"], fn. omitted.)
Our Supreme Court has held reviewing courts have discretion to deny extraordinary writ relief when a petitioner has not shown he or she lacks an adequate remedy in the ordinary course of law by way of an appeal. As the Court explained at some length in People v. Mena (2012) 54 Cal.4th 146 (Mena): "A writ of mandate, or mandamus, is an extraordinary writ known at common law. The writ of mandate lies generally to compel performance of a legal duty when no plain, speedy, and adequate remedy at law is available. (Code Civ. Proc., §§ 1085-1086.) Review by mandate 'is often sought before trial to avoid the effect of a trial court's order or other ruling that will affect the conduct of the proceedings and that could not otherwise be challenged until after judgment is rendered.' (1 Bonneau et al., Appeals and Writs in Criminal Cases (Cont.Ed.Bar 2011 supp.) § 7.8, p. 354.) Unlike the appeal following judgment, which is heard as a matter of statutory right, review by writ is at the discretion of the reviewing court. 'The discretionary aspect of writ review comes into play primarily when the petitioner has another remedy by appeal and the issue is whether the alternative remedy is adequate.' (Powers v. City of Richmond (1995) 10 Cal.4th 85, 113[ ]; see Code Civ. Proc., § 1086.)" (Mena, supra, at 153; see also Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1119 [citing cases]; People v. Loper (2015) 60 Cal.4th 1155, 1167 [a petitioner seeking extraordinary writ relief must demonstrate an appeal would not be an adequate remedy under the particular circumstances].)
Here, petitioner has not shown he lacks an adequate remedy by way of appeal, particularly because District Attorney Gascón is repeatedly on record (including in this appeal) as supporting his request for relief. We consider the two possible scenarios that would transpire if we denied relief: (1) petitioner is tried on the information, including the reinstated allegations; or (2) petitioner wishes to enter a plea of guilty (or no contest) to avoid a trial on the merits.
In his petition for review of this court's summary denial order that resulted in a grant and transfer of the cause back to this court, petitioner recognized these were the two possibilities: "Whether or not the enhancements are included in this case will affect the nature of the case and possibility of a pretrial resolution between the parties, the jury's verdict on the total outcome, and the potential sentence that might follow."
If the case proceeds to trial, petitioner has an adequate remedy by way of appeal. The District Attorney is entrusted with authority to determine what evidence to offer during its case-in-chief, and if the District Attorney offers no evidence in support of the challenged enhancements (including by way of a stipulated facts trial or a concession that the enhancements should not be found true), they in all probability will either be stricken as a result of a defense motion at the close of the prosecution's case or found not true by the factfinder. In the unlikely event that neither happens and the factfinder does conclude the enhancements have been proven, an appeal is still fully adequate to test either whether the trial court erred in reinstating the enhancement allegations in the first place, or whether sufficient evidence was presented to justify their imposition.
Turning to the scenario where petitioner wishes to enter a guilty plea, an appeal would be almost certainly unnecessary (and still provide a fully adequate remedy if required). To enter a plea, petitioner must admit there is a factual basis for the elements of a charged offense, but he is in charge of what specifically he admits and what he does not. If he does not admit conduct that would permit imposition of the challenged enhancements, we are right back in the same place: the District Attorney would be responsible for presenting evidence to support those enhancements to a factfinder and the District Attorney- who has already decided not to pursue the enhancements-is not legally required to present any evidence. Obviously, if there is no evidence to support imposition of the challenged enhancements, the trial court cannot impose them. And if they are nevertheless imposed for some reason, an appeal advancing a sufficiency of the evidence challenge to the sentence with the enhancements, or a challenge to the trial court's earlier decision to reinstate them, provides a fully adequate remedy.
We are therefore of the view that an appeal is an adequate remedy in the ordinary course of law. We still must consider, however, whether our Supreme Court's grant and transfer order itself bars such a conclusion nonetheless. It does not, and a case that reaches a contrary conclusion is unpersuasive. In People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, the Third District Court of Appeal opined that a direction from our Supreme Court to issue an order to show cause established there was no adequate remedy at law and that the petition should be decided on its merits. (Id. at 571-572.) The authority relied on by the Third District, however, concerned issuance of an alternative writ by the Supreme Court, not an order to show cause. (See, e.g., People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 492 ["Finally, by issuing the alternative writ, we have necessarily determined that there is no adequate remedy in the ordinary course of law and that this case is a proper one for the exercise of our original jurisdiction"].) We believe the issuance of an order to show cause, which does not (like an alternative writ) presuppose a view on the merits, functions merely to turn the matter into a "cause"-which requires further briefing, oral argument, and disposition of the matter via an opinion with reasons stated. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1239-1243; People v. Medina (1972) 6 Cal.3d 484, 490 ["Only when the appellate court issues an alternative writ or order to show cause does the matter become a 'cause' which is placed on the court's calendar for argument and which must be decided 'in writing with reasons stated'"]; Funeral Dir. Assn. v. Bd. of Funeral Dirs. (1943) 22 Cal.2d 104, 106.) In other words, we understand our Supreme Court's grant and transfer order to require us to follow additional procedures to ensure we have given the matter careful consideration. That we have done. We recognize our Supreme Court always retains the prerogative to grant review and issue its own opinion, but unless and until we have such guidance, we respectfully submit our disposition of this proceeding is the correct one.
DISPOSITION
The petition for writ of mandate is denied.
WE CONCUR: RUBIN, P. J., KIM, J.