Preciado v. Super. Ct.

Filed 5/17/19 Preciado 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
JOSEPH PRECIADO,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G056536
(Super. Ct. No. 04CF0599)
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.

-- 1 of 7 --

2
Joseph Preciado 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. Preciado argues, and the Orange County District Attorney (OCDA)
concedes, the court erred by denying the petition because Preciado 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 Preciado is entitled to relief, we decline to suggest to the
parties what might be a better vehicle. We deny the petition.
FACTS1
Officers were on patrol in a marked vehicle when they saw Preciado and his
girlfriend getting out of a parked car near a residence. By the time officers ran the license
plate, determined the plate was stolen, and returned to the car, Preciado and his girlfriend
were gone. Officers interviewed Preciado’s family members who lived in the residence,
including a family member who claimed to be a founding member of “Middle Side”
gang.
About two weeks later, officers saw Preciado driving a stolen car with his
girlfriend as a passenger. A high-speed chase ensued until Preciado crashed the car into a
concrete wall near his family member’s residence. Preciado fled while his girlfriend
remained in the car injured. Officers caught Preciado and arrested him. Preciado was
known to be an active participant of Middle Side gang.
In December 2005, Preciado pleaded guilty to unlawfully taking a vehicle
with a prior conviction on two occasions (Veh. Code, § 10851, subd. (a)), recklessly
evading a peace officer (Veh. Code, § 2800.2, subd. (a)), and street terrorism on two
occasions (Pen. Code, § 186.22, subd. (a), all further statutory references are to the Penal
code, unless otherwise indicated). The factual basis for his plea was he unlawfully took
vehicles and drove recklessly while being an active participant in Middle Side gang.
1 The facts are taken from the police reports.

-- 2 of 7 --

3
Preciado admitted he suffered four prior prison terms (§ 667.5, subd. (b)). The OCDA
dismissed the street terrorism enhancements. The trial court sentenced Preciado to three
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, Preciado 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—four police reports.
The trial court ordered the OCDA to show cause by filing a return. In its
return, the OCDA admitted Preciado committed the offenses without the presence of
another member of his criminal street gang and he was entitled to relief. In his reply,
Preciado requested the court issue a ruling.
Acknowledging the parties agreed the convictions should be vacated, the
trial court denied Preciado’s petition because “the supporting evidence [was] insufficient”
to establish Preciado committed the offenses alone and without the assistance of other
members of his gang. After reciting the facts, the court explained it was unclear whether
Preciado acted alone because there was evidence he was with his girlfriend on both
occasions and a family member who claimed to have founded Middle Side gang was
present on one of the occasions. The court added, “If [Preciado] wishes to litigate the
matter further, the [OCDA] is ordered to bring with it all information regarding this case,
particularly the gang affiliation, or lack thereof, of [his girlfriend], and any available
evidence demonstrating [his family member] was not involved in the commission of the
[first] offense . . . .”

-- 3 of 7 --

4
Preciado filed a petition for writ of mandate in this court. We denied the
petition. (Preciado v. Superior Court (July 26, 2018, G056536) [nonpub. order].)
Preciado 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. (Preciado v. Superior
Court, review granted Sept. 19, 2018, S250359.) 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 23, 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, Preciado 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 Preciado
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

-- 4 of 7 --

5
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 William L. Evans 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, Preciado sought to have superior
court judge Kimberly Menninger vacate the felony judgment superior court judge Evans
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 Preciado to seek to vacate his
conviction.

-- 5 of 7 --

6
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 Preciado 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
Preciado 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

-- 6 of 7 --

7
section 186.22, subdivision (a), Preciado was entitled to relief but not by a petition for
writ of mandate.
DISPOSITION
Petition denied without prejudice to Preciado moving to withdraw his plea
and vacate the judgment or seek other appropriate relief.
.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
FYBEL, J.

-- 7 of 7 --