TROY ADAM ASHMUS, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
A158011
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION TWO
December 4, 2019
CERTIFIED FOR PUBLICATION
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
TROY
Petitioner,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
A158011
(San Mateo County
Super. Ct. No. SC015661A)
In 2016, California voters approved Proposition 66, the Death Penalty Reform and Savings Act of 2016, an initiative measure that “extensively revamp[ed] the procedures governing habeas corpus petitions in capital cases.” (Briggs v. Brown (2017) 3 Cal.5th 808, 822, 824 (Briggs).) Previously, habeas corpus proceedings in capital cases were initiated in the California Supreme Court, but now such proceedings are to be filed first in superior court. (Id. at pp. 824–825.) Under Penal Code1 section 1509, added by Proposition 66, “any petition for writ of habeas corpus filed by a person in custody pursuant to a judgment of death” should be transferred to “the court which imposed the sentence . . . unless good cause is shown for the petition to be heard by another court.” (
imposed the sentence.” This case calls us to interpret the phrase “the court which imposed the sentence.”
Capital prisoner Troy Ashmus had a petition for writ of habeas corpus pending in the California Supreme Court on section 1509’s effective date, and the high court transferred Ashmus’s petition to the court that imposed the death sentence, San Mateo County Superior Court, pursuant to section 1509(g). The Attorney General then moved to transfer the petition to the court where Ashmus was originally charged with the capital offense, Sacramento County Superior Court, and the trial court granted the motion.
By petition for writ of mandate, Ashmus challenges the trial court’s order transferring his petition to Sacramento County. He argues the San Mateo County trial court flouted the plain language of section 1509 and appellate court intervention is necessary to “avoid a potential ‘tennis match’ among courts sending habeas cases bouncing from county to county.” The Attorney General responds that the trial court correctly found good cause existed to “return” the petition to the original transferring court.
FACTUAL AND PROCEDURAL BACKGROUND
In 1984, the District Attorney of Sacramento County filed an information charging Ashmus with multiple offenses, including first degree murder and rape. On Ashmus’s pretrial motion, the trial court changed venue from Sacramento County to San Mateo County. In 1986, a jury found Ashmus guilty of all charges, and the San Mateo County Superior Court imposed a death sentence. (People v. Ashmus (1991) 54 Cal.3d 932, 951–952.)
In 2014, Ashmus filed a second petition for writ of habeas corpus in the California Supreme Court to exhaust certain claims raised in his habeas petition in federal court.
On May 22, 2019, the California Supreme Court transferred Ashmus’s pending habeas petition to the sentencing court as called for by Proposition 66. Our high court’s
order provides, “Pursuant to Penal Code section 1509, subdivision (g), the petition is transferred to the Superior Court of California, County of San Mateo.”
On June 26, 2019, the Attorney General filed a motion to transfer the matter to Sacramento County on behalf of the respondent to Ashmus’s habeas petition. The Attorney General relied on California Rules of Court, rule 4.150, which governs change of venue in criminal cases. (Cal. Rules of Court,2 rule 4.150(a).) Rule 4.150 provides in part, “When a change of venue has been ordered, the case remains a case of the transferring court,” and “Postverdict proceedings, including sentencing, if any, must be heard in the transferring court.” (Rule 4.150(b)(3).)
Ashmus opposed the motion, asserting “section 1509 makes clear that a petition should be heard by the court that imposed judgment barring good cause.” He also argued that rule 4.150 was irrelevant because the rule did not exist at the time he was sentenced, and, in any event, the plain language of section 1509 must prevail over an inconsistent rule of court.
On July 11, 2019, the trial court granted the motion to transfer. The court believed section 1509 was intended to be read “in harmony with [rule] 4.150.” For capital cases in which venue was transferred for trial, the way the
petition “shouldn’t have been transferred here [i.e., San Mateo County Superior Court] in the first place.”3
Ashmus filed a petition for writ of mandate, and we issued an alternative writ directing the trial court to either set aside its transfer order or show cause why a peremptory writ of mandate should not issue. The trial court indicated at a subsequent hearing that it was inclined to comply with the directive of the alternative writ, but the Attorney General objected and asked for an opportunity to file a return. The trial court did not vacate the transfer order, the Attorney General filed a return, Ashmus filed a traverse, and the matter is now before us.4
A. San Mateo County Superior Court is “the Court Which Imposed the Sentence” For Purposes of Section 1509(g)
The trial court interpreted the phrase “the court which imposed the sentence” as used in section 1509 to refer to the trial court where Ashmus’s capital case originated rather than the trial court that imposed the death sentence. Applying its interpretation of the statute, the court determined that the California Supreme Court should not have transferred the petition to San Mateo County Superior Court in the first place because it was not the sentencing court for purposes of section 1509.
Whether the trial court properly applied section 1509 presents a question of statutory interpretation, which we review de novo. (See People v. Boatwright (2019) 36 Cal.App.5th 848, 853 [whether the defendant was eligible for resentencing under Proposition 64 is a question of law subject to de novo review].) “ ‘We interpret voter initiatives using the same principles that govern construction of legislative enactments. [Citation.] Thus, we begin with the text as the first and best indicator of intent.’ ” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321.) “Our first task is to examine the language of the statute enacted as an initiative, giving the words their usual, ordinary meaning. [Citations.] If the language is clear and unambiguous, we follow the plain meaning of the measure.” (People v. Canty (2004) 32 Cal.4th 1266, 1276.) “ ‘Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.’ ” (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037 (Professional Engineers).)
Section 1509 provides in relevant part: “(a) This section applies to any petition for writ of habeas corpus filed by a person in custody pursuant to a judgment of death. A writ of habeas corpus pursuant to this section is the exclusive procedure for collateral attack on a judgment of death. A petition filed in any court other than the court which imposed the sentence should be promptly transferred to that court unless good cause is
shown for the petition to be heard by another court. A petition filed in or transferred to the court which imposed the sentence shall be assigned to the original trial judge unless that judge is unavailable or there is other good cause to assign the case to a different judge.
“. . .
“(g) If a habeas corpus petition is pending on the effective date of this section, the court may transfer the petition to the court which imposed the sentence. . . .” (Italics added.)
The meaning of the pertinent language of section 1509, “the court which imposed the sentence,” is clear and unambiguous, at least as applied in this matter. There is no dispute that the San Mateo County Superior Court imposed Ashmus’s sentence. Accordingly, San Mateo County Superior Court is the “court which imposed the sentence” under section 1509, and this is why the California Supreme Court transferred Ashmus’s pending petition to San Mateo County Superior Court pursuant to section 1509(g).
The trial court reached its contrary result in an effort to “reconcile” section 1509 with rule 4.150, but Ashmus correctly points out that court “[r]ules promulgated by the Judicial Council may not conflict with governing statutes.” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532.) “If a rule is inconsistent with a statute, the statute controls.” (Ibid.) To the extent rule 4.150 may suggest that a capital habeas corpus petition should be transferred to a court other than “the court which imposed the sentence,” it conflicts
with section 1509, and section 1509 controls. And the trial court’s reliance on rule 4.150 is unconvincing for other reasons as well. First, on its face, rule 4.150 applies to “change of venue in criminal cases under Penal Code section 1033,” not to habeas corpus proceedings. (Rule 4.150(a), italics added.)5
Second, the rule did not exist when Ashmus’s death sentence was imposed.6
But the phrase “the court which imposed the sentence” is not ambiguous. Consequently, the trial court was not free to “ ‘add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.’ ” (Professional Engineers, supra, 40 Cal.4th at p. 1037.) Giving the words “the court which imposed the sentence” their usual, ordinary meaning, we conclude San Mateo County Superior Court was “the
court which imposed the sentence” in Ashmus’s capital criminal case. The trial court clearly erred in transferring the petition to Sacramento County Superior Court based on its belief that that court, and not San Mateo County Superior Court, was the “court which imposed the sentence” for purposes of section 1509(g).
B. The Order Transferring the Habeas Petition to Sacramento County Cannot Be Upheld on Grounds of “Good Cause”
While acknowledging that “section 1509 identifies the sentencing court as the presumptive venue for habeas corpus petitions,” the Attorney General points out the statute specifically allows for habeas petitions to be heard in courts other than the sentencing court. Section 1509, subdivision (a), provides “A petition filed in any court other than the court which imposed the sentence should be promptly transferred to that court unless good cause is shown for the petition to be heard by another court.” (Italics added.) Relying on this subdivision, the Attorney General argues the trial court in this case “correctly found that good cause exists to support the return of the case to the transferring county.”
The trial court, however, did not so find. Rather, as we have described, the court determined that, in cases with change of venue, the transferring court (here, Sacramento County) is “in effect,” “the court which imposed the sentence” for purposes of section 1509. Thus, the court determined section 1509(g) called for the transfer of Ashmus’s petition to Sacramento County Superior Court because that court should be deemed the sentencing court under section 1509, even though it was not in fact the sentencing court. The
Nor, Ashmus responds, could it. Because his petition was pending on the effective date of the statute, subdivision (g) of the statute governs. Section 1509(g) states, “If a habeas corpus petition is pending on the effective date of this section, the court may transfer the petition to the court which imposed the sentence.” Under section 1509(g), a habeas petition pending on October 25, 2017, may be heard in the court where the petition was pending (here, our Supreme Court), or that court may transfer the petition
“to the court which imposed the sentence.” But section 1509(g) provides no other option and makes no mention of “good cause” for transfer to a court other than the sentencing court.
Good cause is only mentioned in section 1509, subdivision (a), which governs new petitions, that is, those filed on October 25, 2017, or later. Reading subdivisions (a) and (g) together, Ashmus maintains that a habeas petition may be heard in a court other than the sentencing court in two situations only: (1) when a petition is filed on October 25, 2017, or later in a court other than the sentencing court and “good cause is shown for the petition to be heard by another court” under section 1509, subdivision (a), and (2) when a habeas petition was pending in a court on October 25, 2017, and that court opts not to transfer the petition to the sentencing court under section 1509(g).
We agree with Ashmus’s interpretation of section 1509. Subdivision (g) of section 1509 easily could have been written in a manner that tracked the language of subdivision (a),7
but it was not. We see no reason to read in “good cause” language to subdivision (g) when it is not expressly provided for.Finally, even if we assume a habeas petition pending on the effective date of section 1509 could be transferred to a court other than the sentencing court on a showing of good cause, no such good cause to transfer the petition to Sacramento County was found here.
In the motion to transfer, the Attorney General argued “because the crime was committed in Sacramento County, and the case was tried by the Sacramento County District Attorney, should any factfinding be necessary as a part of the habeas proceedings, it would appear that transferring the case to Sacramento County would result in greater efficiency . . . .” In opposing the
pursuant to an order from the United States District Court, Northern District of California, which required him to exhaust claims including those presented at an evidentiary hearing in the federal court. He asserted the federal litigation had spanned over 14 years and generated thousands of pages of documents and a voluminous evidentiary hearing record. He argued, “respondent’s suggestion that it would be more convenient for witnesses if a hearing was ordered in Sacramento County . . . is undercut by the ability of said witnesses to attend and testify at the hearing held in San Francisco in 2010. [Citation.] As respondent well knows, of the twenty-seven witnesses who testified at the hearing, only five resided in Sacramento County. [¶] In addition, should the court deem further proceedings necessary, one of the claims revolves around the jury selection process in San Mateo County. This court is thus well-suited to adjudicate the claim given familiarity with procedures and practices as well as proximity to historical information should the court so require.”
At the hearing on the motion to transfer, the trial court observed that it could not imagine there would “be any further fact development in a case that was this exhaustively litigated” in federal court. The court continued, “Then the convenience to witnesses is irrelevant. This is a case that’s going to go on its paper.”8
Thus, the court did not find good cause to transfer Ashmus’s petition away from the sentencing court and implicitly rejected the Attorney General’s argument that the possible need for an evidentiary hearing would supply good cause for transfer to Sacramento County.Now in the return, the Attorney General attempts to offer new reasons why good cause might exist to support transfer of Ashmus’s petition to Sacramento County. Ashmus asserts these asserted grounds for good cause are speculative at best and unlikely given the status of this case, arguing the Attorney General’s arguments are “untethered to the record or reality.” We agree with Ashmus. The trial court here did not find good cause to transfer the petition to Sacramento County, and the Attorney General’s current arguments for good cause are unavailing. Accordingly, assuming for the sake of argument that habeas petitions pending on the effective date of
DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior court to vacate its order of July 11, 2019, transferring Ashmus’s petition for writ of habeas corpus to Sacramento County Superior Court and to enter a new order denying the motion to transfer.
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
A158011, Ashmus v. Superior Court
Trial Court: Superior Court of San Mateo County
Trial Judge: Hon. Donald J. Ayoob
Habeas Corpus Resource Center, Susan Garvey, Ann L. Kim, Natalie Link, for Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Ronald S. Matthias, Assistant Attorney General, Holly D. Wilkens, Sarah J. Farhat and Alice B. Lustre, Deputy Attorneys General, for Real Party in Interest.
A158011, Ashmus v. Superior Court