Martin v. Super. Ct.

Filed 5/17/19 Martin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
PAUL MARTIN,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G056537
(Super. Ct. No. 07NF1367)
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.

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Paul Martin 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. Martin argues, and the Orange County District Attorney (OCDA) concedes, the
court erred by denying the petition because Martin 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 Martin is entitled to relief, we decline to suggest to the parties what might be
a better vehicle. We deny the petition.
FACTS1
A man entered the Fullerton Police Department to report two men robbed
and assaulted him the previous evening. The man told police he drank too much at a bar,
and Martin volunteered to give him a ride home. Martin drove his own car by a gas
station where Martin’s acquaintance, “Nazi,” put a gun to the man’s head and removed
his car keys, wallet, and cell phone. The man said he was pushed to the ground, punched,
and kicked. The security video from the bar showed Martin return to the bar and take the
man’s car. Officers found the car in a parking lot across from an apartment complex.
Officers found Martin in the apartment complex. Officers detained Martin and found car
keys, a cell phone, and three credit cards matching the man’s name. Martin said he was a
“Nazi Low Riders” dropout and Nazi was an “Orange County Skins” dropout. Martin
said Nazi took the man’s wallet and denied he used a gun; officers could not find a gun.
In July 2007, Martin pleaded guilty to vehicle theft with a prior conviction
(Pen. Code, § 666.5, subd. (a), Veh. Code, § 10851, subd. (a)), receipt of stolen property
(Pen. Code, § 496, subd. (a), all further statutory references are to the Penal Code, unless
otherwise indicated), and street terrorism (§ 186.22, subd. (a)). Martin also admitted the
street terrorism enhancement (§ 186.22, subdivision (b)). The factual basis of his plea
was he unlawfully received and drove a vehicle while being an active participant of the
1 The facts are taken from the police reports.

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Nazi Low Riders. The trial court sentenced Martin to 180 days in jail and three years of
formal probation. After Martin violated probation, the trial court sentenced him to four
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, Martin 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—seven police reports.
The trial court ordered the OCDA to show cause by filing a return. The
court invited the OCDA and Martin2 to address whether Orange County Skins and Nazi
Low Riders “are ‘subsets of a primary gang that typically work together’.” In its return,
the OCDA admitted Martin committed the offense without the presence of another
member of his criminal street gang and he was entitled to relief. The OCDA did not
address the subsets issue. In his reply, Martin requested the court issue a ruling.
The trial court denied Martin’s petition because the supporting evidence
was insufficient to establish Martin acted alone or that the person he was with were not in
his gang. The court explained the evidence demonstrated Martin committed the offenses
with Nazi but there was insufficient evidence Orange County Skins and Nazi Low Riders
were not subsets of the same gang. The court stated the parties could respond with an
2 We question whether the trial court intended to invite Martin’s defense
counsel to offer evidence against her client.

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order to show cause (OSC) why the court should grant the petition and “[i]f [Martin]
wishes to litigate the matter further, the [OCDA] is ordered to bring with it all
information regarding this case, particularly the identification and gang affiliation, if any,
of the person identified in the police report as ‘Nazi’.”
Martin filed a petition for writ of mandate in this court. We denied the
petition. (Martin v. Superior Court (July 26, 2018, G056537) [nonpub. order].) Martin
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. (Martin v. Superior Court,
review granted Sept. 19, 2018, S250313.) 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, Martin 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 Martin 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

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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 Roger B. Robbins 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, Martin sought to have superior court
judge Kimberly Menninger vacate the felony judgment superior court judge Robbins
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 Martin to seek to vacate his conviction.

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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 Martin 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
Martin 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

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

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