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Filed 2/ 4 /20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

RAMON BOJORQUEZ SALCIDO, Petitioner,

v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. A1 5 8016
( San Mateo County Super. Ct. No. SC024541A )

Proposition 66, the Death Penalty Reform and Savings Act of 2016, made substantial changes to the procedure s governing petitions for writs of habeas corpus in capital cases. Among the se changes was ending the practice
of capital defendants initiating habeas proceeding s in the Supreme Court , and instead having the “court which imposed the sentence” decide the petition s in the first instance

. (Pen. Code 1 , § 1509, subd. (a).) To facilitate this change, Proposition 66 authorized the Supreme Court to transfer pending habeas petitions in capital cases to the sentencing court

. (§ 1509, subd. (g).) After the passage of Pro position 66, the Supreme Court transferred defendant Ramon Bojorquez Salcido’s pending habeas petition to San Mateo

1 Unless otherwise noted, all statutory references are to the Penal Code.2

County, the county where Salcido was convicted of capital murder and
sentenced to death. R ather than contest the habeas petition in San Mat eo County , t he People filed a motion for the trial court to transfer the petition to Sonoma County, which is where the People initially charged Salcido before
the case was transferred to San Mateo County due to pretrial publicity. The trial court granted the People’s motion and ordered the transfer of Salcido’s habeas petition to Sonoma County. In this writ of mandate proceeding, Salcido challenges the trial court’s ruling and contends his habeas petition must remain in San Mateo County. We agree with Salcido

. The Supreme Court, b y transferring Salcido’s petition to San Mateo County pursuant to Proposition 66, has already determined that San Mateo County is the “court which imposed th e sentence” and must therefore decide the petition . N either this court nor the trial court may second

- guess that decision. And even if we could, we would conclude that San Mateo County is the court which imposed Salcido’s sentence and that
there is no st atutory basis supporting the People’s position that San Mateo County, as the sentencing court, may transfer the petition to another county

. Accordingly, we will grant writ relief to Salcido and direct the trial court in San Mateo County to deny the Peop le’s motion to transfer Salcido’s habeas petition to Sonoma County. BACKGROUND In October 1989, the Sonoma County District Attorney charged Salcido with capital murder in Sonoma County. 2 The trial court in Sonoma County granted Salcido’s motion to transfer his case to another venue due to pretrial publicity. His case was transferred to San Mateo County

. Judge R eginald

2 Specifically , Salcido was charged with six counts of first degree murder, one count of second degree murder, and two counts of attempted murder.3

Littrell of Sierra C ounty presided over the trial. ( People v. Salcido (2008) 44 Cal.4th 93 ( Salcido ). ) A jury convicted Salcido and determined his punishment should be death. In 2008, the Supreme Court affirmed the judgment in its entirety. (See Salcido , supra , 44 Cal.4th at p. 103.) The following year, the Supreme Court denied a petition for writ of habeas corpus filed by Salcido challenging the judgment

. Salcido then filed a habeas petition in federal district court in August
2012. The federal court stayed Salcido’s petition so that he could exhaust his
claims i n state court. Salcido then filed a second petition for writ of habeas corpus in the California Supreme Court in November 2013. Salcido’s second habeas petition remained pending in the Supreme
Court in November 2016 when voters approved Proposition 66. The initiative became effective on October 25, 2017. (Credits, 51A West’s Ann. Pen. Code (2019 supp.) foll. § 1509; Briggs v. Brown (2017) 3 Cal.5th 808, 862 ( Briggs ) .) Proposition 66 enacted a series of statutory measures that “extensively revamp[ed] th e procedures governing habeas corpus petitions in capital cases.” (See Briggs , at p. 82 4

. ) Among other changes, Proposition 66 ended the practice of capital defendants initiating habeas proceedings in the Supreme Court by requiring the sentencing court to be the first to hear a habeas petition

. ( Id. at p. 824.) This change is reflected in subdivision (a) of section 1509, which states that a capital habeas petition “filed in any court other than the court which imposed the sentence shou ld be promptly transferred to that court unless good cause is shown for the petition to be heard by another court.” For habeas petitions pending in the Supreme Court on the effective date of Proposition 66, subdivision (g) of section 1509 states the Supre me Court “may” transfer the petition to the “court which imposed4

the sentence.” (§ 15 09, subd. (g).) Once a petition has been transferred to the sentencing court, section 1509 does not authorize the sentencing court to transfer the petition to another court. In May of this year, the Supreme Court invoked its authority under subdivision (g) to transfer Salcido’s pending habeas petition to the sentencing
court. The Supreme Court’s order stated : “Pursuant to Penal C ode section 1509, subdivision (g), the petition is transferred to the Superior Court of California, County of San Mateo.” After the case was transferred to San Mateo County, the P eople, represented by the Sonoma Count y District Attorney, filed a motion to transfer the habeas petition to Sonoma County , arguing that Sonoma County
should be deemed the sentencing court under section 1509

. The trial court agreed and granted the People’s moti on. 3 Salcido petitioned for a writ of mandate with us , asking that we direct the superior court to deny the motion to transfer . We stayed the trial court’s
order and requested preliminary briefing. After receiving the briefing, we reached the preliminary conclusion that the matter sho uld remain in San Mateo County. We issued an alternative writ of mandate directing the superior court to set aside and vacate its order granting the People’s motion to transfer and enter a new one denying the motion or, in the alternative, to

3 During the hearing at which the trial court granted the People’s motion to transfer Salcido’s petition, the court also granted the People’s motion to transfer a petition filed by Troy Adam Ashmus to the originating court. Salcido requests that we take judicial notice of Ashmus’s petition for writ of mandate, which was filed in this court. We grant the request. We previously denied Salcido’s request to consolidate his petitio n for writ of mandate with Ashmus’s petition. Our colleagues in Division Two recently granted Ashmus’s writ petition and directed San Mateo County to deny the People’s motion to transfer. (See Ashmus v. Superior Court (2019) 42 Cal.App.5th 1120, 1130 ( Ashmus ).)5

sh ow cause before us why a peremptory writ of mandate should not be issued

. The superior court did not vacate its ruling, and the matter is now before us. 4 DISCUSSION
Salcido argues the trial court erred by ordering the transfer of his habeas petition t o Sonoma County. Salcido asserts that San Mateo County, not Sonoma County, is the “court which imposed the sentence” under section

1509 , meaning that San Mateo County may not transfer the petition to another county and must decide the petition itself

. We are compelled to agree with Salcido because the Supreme Court has already determined that San Mateo County must decide Salcido’s habeas petition . In its May 2019 order, the Supreme Court stated it was transferring Salcido’s petition to San Mateo County “[p]ursuant to Penal Code section 1509, subdivision (g).” S ection 1509, s ubdivision (g) gives the Supreme Court discretion to transfer a habeas p etition “to the court which imposed the sentence.” By transferring the petition to San Mateo County pursuant to section 1509, subdivision (g), the Supreme Court necessarily determined that San Mateo County is the court which imposed Salcido’s

sentence. A s the court which imposed the sentence, San Mateo County was not permitted to transfer Salcido’s petition to another court.
It is axiomatic that the trial court could not disregard the Supreme Court’s determination that San Mateo County was the court wh ich imposed

4 Salcido argues that we should not consider the People’s return to the order to show cause because it is neither a verified answer nor demurrer, as required by our rules of court. (See Cal. Rules of Court, rule 8.487(b)(1) [“If the court iss ues an alternative writ or order to show cause, the respondent or any real party in interest, separately or jointly, may serve and file a return by demurrer, verified answer, or both.”].) We will treat the People’s return as a memorandum of points and aut horities in support of a demurrer to Salcido’s petition for writ of mandate. (See Ashmus , supra , 42 Cal.App.5th at p. 1124 , fn. 3 .)6

Salcido’s sentence

. (See Hampton v. Superior Court (1952) 38 Cal.2d 652, 655 [“The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void.”].) Li kewise , we lack the authority to grant writ relief that would effectively overturn the Supreme Court’s order . (See Code Civ. Proc., § 1085, subd. (a) [writ of mandate may be issued only to an “inferior tribunal”]; People v. Davis (2014) 226 Cal.App.4th 1353, 1371 [“ ‘Mandamus or prohibition may be issued only by a court to another court of inferior jurisdiction .’ ”].) Salcido’s habeas petition must remain in San Mateo County for decision.
Since the Supreme Court has determined that San Mateo County must decide Salcido’s habeas petition , we need not address the issue any further

. Nevertheless, in order to p rovide guidance to the parties on section 1509, we briefly explain why we agree that San Mateo County is the proper court for deciding Salcido’s habeas petition.
The issue turns on whether San Mateo County is the “ court which imposed the sentence ” under section 1509 , as nothing in section 1509
authorizes a sentencing court to transfer a capital habeas petition to another

court. In order to determine w hich court imposed the sentence under section 1509, “[o]u r first task is to examine the l anguage of the statute enacted as an initiative, giving the words their usual, ordinary meaning. [Citation.] If the language is clear and unambiguous, we follow the plain meaning of the measure.” ( People v. Canty (2004) 32 Cal.4th 1266, 1276.)
The mean ing of “court which imposed the sentence” ( § 1509) is clear

an d unambiguous

— it means the court where a defendant was sentenced. Here, that court is San Mateo County, which is where Salcido was sentenced
to death

. Indeed, our Supreme Court has already obs erved in Salcido’s direct7

appeal that Salcido’s death sentence was imposed in San Mateo County. (See
Salcido , supra , 44 Cal.4th at p. 103 [“Defendant Ramon Bojorquez Salcido appeals from a judgment of the San Mateo County Superior Court imposing a sentence of death.”].) The trial court concluded that Sonoma County, not San Mateo County,
was the court which imposed the sentence by look ing to California Rules of Court, rule 4.150, the current rule governing the transfer of venue in a criminal trial. Under rule 4.150, when a case has been initiated in one venue but transferred to another, the case “remains a case of the transferring

cour t. ” (Cal. Rules of Court, rule 4.150(b).) Rule 4.150 states further that “[p]ostverdict proceedings, including sentencing . . . must be heard in the transferring court.” (Cal. Rules of Court, rule 4.150(b)(1) & (3).) The trial

court believed that rule 4.150 and section 1509 “can be read in harmony” to mean that Sonoma County was the sentencing court, with San Mateo County “serving only as a locale for the trial.” The court explained : “The Sonoma County Superior Court has always retained jurisdic tion of this case, and Sonoma County will have the responsibility for defending the judgment as well as for costs related to the petition .”
The trial court should not have looked to rule 4.150 to aid its analysis
because the rule was not in effect at the time of petitioner’s trial and sentencing. Instead, the applicable rule s were found in California Rules of Court, former rule 840 et seq. Under the prior rule, “[t]he court to which the action is transferred shall proceed as if the action had been commen ced in such court.” ( Cal. Rules of Court, f ormer rule 844.) Unlike current rule 4.150, the prior rule did not state a case remains a case of the transferring

court after that court has transferred a case to another venue . Nor did the prior rule have any provision stating that sentencing must take place in the8

transferring court . It is apparent that Salcido’s trial and sentencing proceeded under the prior rule, as his sentencing occurred in San Mateo County and has been deemed a judgment of San Mateo Cou nty. Because Salcido’s trial and sentencing proceeded under the prior rule, the trial court’s reliance on rule 4.150 was misplaced. In arguing in favor of a transfer to Sonoma County, the Attorney
General relies on t he Supreme Court’s decision in People v. Peoples (2016)
62 Cal.4th 718

. Peoples , however, does not support the Attorney General ’s argument . In fact, Peoples bolsters our conclusion that San Mateo County is
the cou rt which imposed the sentence. The defendant in Peoples was charged
wit h capital murder in San Joaquin County . B efore trial, the court transferred venue to Alameda County under a prior version of the venue
transfer rule . Both the guilt and penalty phases of the trial were conducted
in Alameda County before a San Joaquin Cou nty judge. ( Id. at p. 790.) After the jury recommended the death sentence , the judge reconvened proceedings in the San Joaqu in courthouse, where it sentenced the defendant to death

. (Id. at pp. 790

– 791.) The defendant argued on appeal that the trial co urt “lacked jurisdiction to impose the death penalty because the court was physically sitting in San Joaquin County when it imposed the death penalty.” ( Id. at p. 790.) In rejecting the defendant’s argument, the Court explained : “Before physically reloc ating proceedings to San Joaquin County and imposing the death sentence, the trial court consulted with the Judicial Council to determine whether posttrial proceedings could take place in San Joaquin County. The Judicial Council advised the trial court th at regardless of where it sat, it would still operate under the jurisdiction of Alameda County .” ( Id. at p. 791 , italics added .) The Supreme Court the n noted that
after the defendant’s trial, the Judicial C ouncil promulgated current r ule9

4.150 “to require ‘postverdict proceedings, including sentencing’ to ‘ be heard in the transferring court. ’ (Cal. Rules of Court, Rule 4.150(b)(3).)” ( Ibid. )
The Supreme Court’s explanation indicates to us that, before the current rule for venue transfers became effective , a transferee court

— Alameda in Peoples
and San Mateo in this case

— was considered the court of record for sentencing purposes. The Attorney General argues that section 1509 “merely establishes a presumpt ion for the sentencing court hearing a habeas petition, and does not compel a court to ignore proper considerations that inform whether there is good cause to transfer the petition to the county where the crime occurred.” The Attorney General’s argument m isunderstands the operation of section
1509. As our colleagues in Division Two of this court explained in Ashmus , “[g]ood cause is only mentioned in section 1509, subdivision (a), which governs new petitions, that is, those filed on October 25, 2017, or l ater. ” ( Ashmus , supra , 42 Cal.App.5th at p. 1128 .) Salcido’s petition, however, is governed by subdivision (g), as it was pending in the Supreme Court when Proposition 66 became effective. (See § 1509, subd. (g).) Once the Supreme
Court has transferred a petition to the sentencing court pursuant to

s ubdivis ion (g), the subdivision does not permit a sentencing court to transfer a petition to another court for any reason . ( Ibid. ) Moreover, even if this case was governed by subdivision (a), that
subdivision explicitly provides only for a one

- way transfer from “any court other than the court which imposed the sentenc e” to the sentencing court, “unless good cause is shown.” (§ 1509, subd. (a).) It makes no provision for a transfer from the sentencing court to another superior court. Thus, where, as here, a petition is already with the sentencing court, section 1509 d oes not allow the petition then to be transferred elsewhere. For this reason, the10

practical considerations offered by the Attorney General for transferring Salcido’s petition to Sonoma County , such as the burden on Sonoma County prosecutors and the victim s , are irrelevant. They would be relevant if, for example, Salcido had filed a habeas petition in Sonoma County, and the Sonoma County Superior Court sought to establish good cause for hearing the petition rather than transferring it to the sentencing cou rt in San Mateo County. But absent that situation, section 1509 provides no mechanism for the transfer of Salcido’s habeas petition from San Mateo County, where he
was sentenced. DISPOSITION Let a peremptory writ of mandate issue directing respondent Superior Court of San Mateo County to vacate and set aside its ruling granting the People’s motion to transfer, and to enter a new and different order denying
the motion.

______________ ___________ BROWN, J.

WE CONCUR:

_________________________ POLLAK, P. J.

_________________________ STREETER, J.11

Trial Court: San Mateo County Superior Court

Trial Judge: Hon. Donald J. Ayoob

Counsel:
Hilary Potashner, Amy M. Karlin, Federal Public Defenders, Marta VanLandingham, Michael D. Weinstein, Deputy Federal Public Defenders, for Petitioner.
No appearance for Respondent.
Xavier Becerra, Attorney General, Lance Winters, Ronald S. Matthias, Assistant Attorneys General, Holly D. Wilkins, Alice B. Lustre, Sarah J. Farhat, Deputy Attorneys General; Robert Maddock, Sonoma County Deputy District Attorney, for Real Party in Interest.

Salcido v. San Mateo County Superior Court (A158016)