*1 Third Dist. Dec. C051198. [No. 2006.] PEOPLE,
THE Plaintiff and Respondent, DUTRA,
SARAH ELIZABETH Defendant and Appellant.
Counsel Ann under the Court of Hopkins, by for Defendant and appointment Appeal, Appellant. General, Anderson,
Bill Lockyer, R. Attorney Robert Chief Assistant Attorney General, Graves, General, Jo Mary Assistant Mathew Chan and Attorney Tennant, General, Catherine G. for Plaintiff and Deputy Attorneys Respondent. Opinion
MORRISON, In a we affirmed Sarah Dutra’s Elizabeth prior opinion J. 18, 2005, C044075) v. (People convictions. felony (May [nonpub. (Dutra I).) Based an concession at oral explicit argument by opn.] General we Attorney a midterm gave People option accepting I, (Dutra sentence on or “a for a trial.” manslaughter, remand or the midterm sentence C044075.) petition did not accept People trial. a The remittitur ordered or review. rehearing of the California decision intervening Because of an 740, 113 P.3d Cal.Rptr.3d Black Court—People conduct such a trial. Dutra appealed. trial court did not (Black)—the 534] Dutra I view that although represented General takes the The Attorney case,” doctrine exists for to the law of the case an exception “law of law, such and the Black decision represents in the governing changes We disagree. our remittitur. disobey the trial court authorizing change, but the terms of bound not law of the case The trial court was remittitur, as that would disobey A trial court may our remittitur. decision, a basic violating thereby court’s amount to overruling law must inferior exercising accept “Courts legal principle: *4 their function to attempt It is not of superior jurisdiction. declared courts Sales, (Auto Inc. v. Superior court.” higher Equity overrule decisions of to 450, 321, 937].) P.2d (1962) 57 Cal.2d Cal.Rptr. Court [20 the trial court. have been obeyed by The term of the remittitur should 1238, Black, trial is a sentencing supra, We that under recognize an term a trial court may impose upper before necessary not ordinarily However, the (DSL). determinate apparent law sentence under the General’s of the Attorney a trial for Dutra is largely in such anomaly ordering I, conceded First, the General Attorney in Dutra at oral making. argument time, we settled at that the law was not was Because necessary. such a trial Second, discretion. as an exercise prosecutorial the concession accepted the or withdraw clarify for rehearing did not petition the General Attorney issue, which was for review to preserve and did not petition concession The result was Court. before the California Supreme then pending Dutra more the result gives protections of the remittitur. Although issuance factors, that does defendants, trial on sentencing a jury than other specifically, her or the miscarriage justice People. to a equate with directions. vacate the sentence We will
BACKGROUND student, case, Dutra, fell under the college a young high In this publicity Sims, Attorney Larry married who had artist Laren Jordan of con sway kill and taken control of his affairs. Sims used slow McNabney poison 11, 2001; him, failed to Dutra Sims move McNabney September helped alive, call the was still Sims hide police although McNabney body helped conceal the fact of his death. was found on helped McNabney’s body 5, 2002. Sims was arrested in Florida but killed herself before she February extradited, could be Dutra to face circumstance murder leaving special The Dutra charges. accessory convicted jury voluntary manslaughter after the fact to murder. The trial court term of 11 years imposed upper I, 14, 2003, (Dutra supra, C044075.) for the On manslaughter charge. May filed Dutra a notice of timely appeal. 2004,
On June Blakely the United States Court decided Washington (2004) 542 U.S. 296 L.Ed.2d 124 S.Ct. 2531] (Blakely), holding that the Sixth entitled a Amendment defendant Washington to a trial on jury sentencing factors. 21, 2005, in Dutra I.
On March we conducted oral argument I, 18, 2005, On we issued May her attacks on her rejecting claimed that Blakely, convictions. Dutra had also 542 U.S. to the DSL. We stated in “At oral applied argument part: Attorney General conceded the had be Blakely. case reversed for under resentencing We agree General conceded at that the part. Attorney argument [][]... contested, therefore, factors relied on trial curt were we I, (Dutra cannot find the C044075.) error harmless.” We then elabo *5 rated by the trial court’s comments and summarizing sentencing describing {Ibid.) facts about Dutra in the positive negative record. that the midterm was six we observed that the “in
Noting years, People, consultation with the San District could either Joaquin Attorney” accept midterm a for modification of the sentence or could do by filing request they which case “the remittitur will affirm the convictions and order nothing, I, (Dutra C044075.) supra, remand for a trial.” Court, Dutra filed for review with the California Supreme petition her convictions. The did not or challenging petition rehearing People review our decision. Black, 20, 2005,
On June the California Court decided holding Supreme Blakely, supra, the DSL was unlike the law at issue in 542 U.S. and that (Black, no trial on factors was in California. jury aggravating required 35 Cal.4th 17, 2005, Court denied Dutra’s petition
On the California August Supreme 23, 2005, our remittitur issued. August for review. Accordingly, 12, 2005, the cause was set for a in the trial court. hearing On September an ex letter from the attorney The trial had received parte deputy issue, Blakely who had conceded the addressed to the district general Black, without that our attorney, stating vitiated analysis remittitur.
At the
former
counsel
that the trial court
Dutra’s
hearing,
argued
Black,
the remittitur. The trial court stated his view that
was
to follow
obliged
“MS. THOMAS: Don’t is not entitled to a jury “THE COURT: The defendant interrupt, [f] and, therefore, trial on the of fact would stand. And issues further she’s not entitled to any hearing.”
Dutra filed her timely appeal.
DISCUSSION I. the Black decision is and she wants argues wrong preserve review, Cunningham California,
issue for further the decision in pending 05-6551, States Court.* The issue No. in the United argued recently is preserved.
H. *6 doctrine, in the law of the case which both civil applies We first describe criminal cases: and
' “
where,
That
an
doctrine of the law of the case is this:
upon
appeal,
“The
court,
in its
in
the
states
deciding
opinion
principle
the [reviewing]
appeal,
decision,
or rule becomes the
law
the
that
or rule of
necessary
principle
adhered to
its
throughout
subsequent progress,
law of the case and must be
_
856,
(2007)
Cunningham
U.S.
L.Ed.2d
*Reporter’s
[166
Note:
v.
549
California
1365 assumed, and, in as here appeal, lower court and upon subsequent both in the action, this its although of and for the same cause suit any subsequent that the be of the clearly opinion this court may consideration subsequent ’ that The principle applies decision is erroneous in particular.” former civil matters .... criminal as well as is ‘Finality judicial economy.
“The reason for the doctrine is principal further reversal and so as to avoid the attributed to an initial ruling appellate were not adhered if the initial ruling on remand that would result proceedings one merely Because the rule is in a later appellate proceeding.’ [Citation.] [citations], of the court to the go jurisdiction and does procedure will result in an unjust adhered to where its doctrine will not be application decision, of existing a ‘manifest where there has been e.g., misapplication [citation], rules or the controlling in substantial resulting injustice’ principles between the law or clarified a decision intervening have been altered decision unjust first and second determinations appellate [citation]. there a mere with the disagreement prior does not when exception apply 764, (1995) (People Stanley 10 Cal.4th 786-787 determination.” 543, (Stanley).) P.2d 897 Cal.Rptr.2d 481] [42 “Indeed, A mistaken only the doctrine: it is is not to avoid ruling enough of the law of the deemed erroneous that the doctrine when former rule is v. Ganahl (1907) 151 Cal. 421 (Tally case becomes at all important.” Home in Morohoshi v. 1049]; P. with quoted approval [90 Pacific 433].) But for Cal.4th 100 P.3d purposes Cal.Rptr.3d Black, 1238, would invoke the we that argument accept However, does not that conclusion to the law of the case doctrine. exception resolve this case. above, “does not to the go stated the law of the case doctrine
As of the court” and that reason “will not be adhered to where its decision, ... the controlling in an where unjust e.g., will result application a decision between intervening rules of law have been altered or clarified by (Stanley, 10 Cal.4th at determinations.” first second appellate Here, rule does to the trial court’s go as we explain, applicable jurisdiction. “The in a criminal
Penal Code that appeal: section provides from, reverse, affirm, or or order appealed or modify judgment may offense or punishment of the offense or degree attempted reduce aside, affirm, all of the or or modify any proceedings set may imposed, order, if to, or and may, such judgment or subsequent dependent upon, *7 the to trial order a new trial and if remand cause the may, proper, proper, court for such further as under the circumstances.” just be proceedings may
Penal Code section 1262 in that “If a the provides judgment against part reversed, trial, defendant is such reversal shall be deemed an order for a new unless the court shall otherwise direct.” Here we otherwise directed. appellate
After the of remittitur “the court has no further jurisdiction appellate thereon, the or of the all orders necessary carry appeal proceedings the into shall be made the court to which the judgment by effect certificate Code, 1265, Thus, (Pen. added.) .” the trial court is revested remitted italics § case, with of but the ordered only carry judgment by the out as jurisdiction Proc., (Code the court. The true in Civ. appellate same is civil cases. §§ 906, 912; (3d 2000) see 6 Witkin & Cal. Criminal Law ed. Criminal Epstein, same].) and civil the rules Appeal, § [criminal doctrine, This rule sometimes with the law of the case leading overlaps some courts to discuss the two rules together:
“Where a court reverses a with directions to enter reviewing judgment for the trial court is bound the directions Its judgment plaintiff, by given. is limited the directions of the authority wholly solely following court. rendered to such reviewing Any judgment contrary specific [Citation.] directions would be void. When there has been decision [Citation.] cause, the trial court is reinvested with of the but appeal, jurisdiction only such as is defined the terms of the remittitur. The trial court is jurisdiction to act in accordance with the direction of the only reviewing empowered court; action which does not conform to those directions is void. The court is the law the case and is reviewing directed judgment on the the trial court. controlling jurisdiction [Citation.] assumed, contends, “If it be as that the order of appellate petitioner have included a in his favor should not reversing judgment department interest], in favor of direction for the of a final entry judgment party [real If the error was Petitioner should have for a court rehearing. judicial. applied court on of review omits to include in its instructions to trial inadvertently the reversal of a essential elements within the issues necessarily judgment has his in a determined on the appeal, aggrieved party remedy petition 370-371 Court (Stafford Municipal Cal.App.2d rehearing.” 441], added.) italics Cal.Rptr. that the judgment In of this the court noted the italicized portion passage, was “law of the case” and controlled of the
1367 because misleading is of the quotation potentially the trial court. This portion The terms sentence. in one ambiguous two different concepts it discusses of the case. The not law the trial court’s jurisdiction, of the remittitur define on, the law of is it limited by nor the remittitur does not depend force of . directions . . a with court reverses reviewing judgment the case: “Where a to retry and no authority directions has given bound by the trial court is limited wholly Its is authority make other any findings. other issue or to any (Rice v. Schmid court.” reviewing the directions of to solely following (Rice); Bailey see Tsamas v. (1962) 259, 263 P.2d (1944) 25 Cal.2d [153 313] Carter v. Court Superior 593, 336]; (1950) Cal.Rptr. 205 595 Cal.App.2d [23 388, have adhered P.2d courts repeatedly 96 391 Cal.App.2d [215 491] [“The to had rendered judgment contrary the rule. . . . or Any strictly proceedings void”].) such directions would be specific of the remittitur effects
“The court clerk’s issuance appellate has The ‘court reviewing transfer of to the lower court. jurisdiction [Citation.] review or and it cannot no over its own judgments, control the issuance once from its them after the cause has modify passed [citation], limited circumstances in although very remittitur’ Court, 25(d).) At the ([Cal. Rules of former remittitur be recalled. may r]ule time, define the trial court’s jurisdiction same the terms of the remittitur remittitur, decisive of court as stated in the “is act. ‘The order of the appellate ’ ” (Snukal v. entitled.” to which the is the character of the judgment appellant 754, 774, Inc. Flightways Manufacturing, (2000) 23 Cal.4th fn. 5 [98 Practices Com. (Snukal); see Griset v. Fair Political 1, 3 P.3d Cal.Rptr.2d 286] 43]; Butler v. 149, 23 P.3d (2001) 25 Cal.4th 701 Cal.Rptr.2d [107 Court Superior (2002) 982 Cal.Rptr.2d 104 Cal.App.4th [128 403] must be followed. material Any are on the trial court and “binding [directions void”].) variance ... is unauthorized Court, trial court the rule requiring to the California
According jurisdictional, the law of the unlike follow the terms of the remittitur Rice, 77 (Snukal, 5; 25 at fn. doctrine. case Therefore, believed our decision was whether the trial court Cal.2d at p. decisions, it was bound or or had been wrong, impaired subsequent right v. Lincoln also People (2006) 144 (See Cal.App.4th the remittitur. to follow B. In re Terrance 855]; 144 965 Cal.App.4th [50 Cal.Rptr.3d [50 815].) Cal.Rptr.3d and do not of law of the case their brief to a discussion devote People do on one case rely to a remittitur. They adherence the law
analyze regarding People Sequeira (1982) 137 herein: trial court’s actions of the support (Sequeira). case We find that inapposite Cal.Rptr. Cal.App.3d 470] remittitur; because it fails to discuss the rule that a trial court must it obey discusses the law of the case doctrine. only *9 felonies, was convicted of several armed The
Sequeira including robbery. convictions were affirmed but the cause was remanded for resentencing because the court the concluded sentence exceeded limits: appellate legal Based on then armed existing did not as a authority, robbery arguably qualify violent for of felony sentencing. 137 at purposes (Sequeira, supra, Cal.App.3d 899-900.) After pp. was decided but before the remittitur Sequeira’s appeal issued, the California Court held armed was a violent Supreme robbery decision, for With the benefit felony of that the purposes. appellate court would not have (Id. 900.) remanded the matter for at resentencing. p. remittitur, The trial court in followed the it was bound Sequeira stating “ ” court,’ ‘law of the (italics added) case and the the ruling however, stated, resentenced the the court Sequeira; upon People’s appeal, “The issue of the only is whether the court erred in its appeal superior of the doctrine of law of the case . . . .” application 137 (Sequeira, supra, 900.) at Cal.App.3d p. case,
This statement was not correct. One issue was law of the but the stated, trial Sequeira court had also that it bound to the correctly, was follow Nowhere does discuss a trial appellate ruling. Sequeira court’s a duty obey are (Hart remittitur. Cases not considered. v. authority propositions 530, Thus, (1860) 598.) Burnett 15 Cal. 137 Sequeira, supra, Cal.App.3d 898, does not the assertion that the trial court support People’s properly declined to obey remittitur in this case.
If a remittitur is the trial court can it in the law ambiguous light of interpret (See and the to determine its duties. Combs v. Haddock appellate opinion (1962) Here, however, 252].) Cal.App.2d Cal.Rptr. remittitur was not ambiguous.
We also out that of the Black decision there was point upon filing this court could We nothing do. lack to recall a remittitur to correct power our judicial mistake in General’s error—meaning accepting Attorney concession at oral which in argument, hindsight proved improvident. 413].) 48 Cal.2d P.2d (People 488 [310 Randazzo that we reasons lack to reverse because dissenting opinion power no taken has We The California “miscarriage justice” place. disagree. Court has that a trial court’s to act remand explained (Snukal, at higher
from court is defined the remittitur. 5; Rice, effect, 25 Cal.2d fn. In at once the remittitur p. issued Dutra had to a right The trial legal hearing. her of that in an act outside deprived wholly made the trial court’s right view, That, is a in our at least insofar as jurisdiction. justice, miscarriage concerned.
III. Not did Garber of the from only the view ex letter Judge adopt parte Tennant, Catherine he cut Deputy Attorney General A. off Dutra’s former *10 counsel, Thomas, A. tried when she to her Cynthia explain position, later refused her to brief the issue. In order to forestall claim request any embroilment, of undue the matter shall be to a assigned different judge Proc., 170.1, (Code remand. (c).) Civ. subd. §
DISPOSITION The sentence is vacated and the cause remanded the trial court for further with proceedings consistent this opinion.
Blease, J.,P. concurred. Acting
SIMS, J., dissent. Dissenting. I respectfully
I
the trial
erred in
agree
to follow the
our
failing
directive of
remittitur
defendant a
give
trial.
sentencing
I also agree that the doctrine of law
did
trial
of the case
not
in the
apply
However,
court. But it
this
court.
the doctrine is
to an
applies
subject
Here, the
rule
exception.
controlling
of law with
trials
respect
sentencing
been
has
altered or
aby
clarified
decision
between defendant
intervening
Stanley
(See
Dutra’s first
and this one.
People
v.
appeal
Black
481].)
897 P.2d
decision
People
new
Cal.Rptr.2d
[42
Black,
(2005)
There is no here. Under current defendant Dutra miscarriage justice Indeed, is not entitled to a trial. majority her give procedural to the available vast of defendants. There is an unfairness right majority here, Rather, but not to Ms. and the it is Dutra. it is to trial prosecutor court, who Ms. a trial to she is give must which not entitled.
I dissent.