Filed 5/17/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RICHARD MOLINA,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

THE PEOPLE,

 Real Party in Interest.

 G056530

 (Super. Ct. No. 02CF0701)

 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. 
2

Richard Molina 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. Molina argues, and the Orange County District Attorney (OCDA) 

concedes, the court erred by denying the petition because Molina 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 Molina is entitled to relief, we decline to suggest to the 

parties what might be a better vehicle. We deny the petition. 

FACTS1

Police officers received a call there were people in a park vandalizing a

table and smoking marijuana. When police arrived they saw a woman walk from the 

park to a car, retrieve a jacket, and walk back into the park where she sat at a table with 

Molina and another man. Police officers walked by the car and saw a 40-caliber cartridge 

on the armrest. A search of the car revealed a loaded 40-caliber pistol magazine and a 

40-caliber semiautomatic pistol in the glove compartment. A search of the man revealed 

a small bag of marijuana. The man admitted to an officer he “kick[ed] it with Smalltown 

gang.” The man told an officer that when he picked up Molina, Molina had a loaded gun, 

and after the man unloaded the gun, the man put it in the glove compartment. Molina 

confirmed the man’s story, but explained he was holding the gun for a friend. Officers 

arrested Molina and the man. Further investigation revealed Molina was an active 

member of the “Prestige” and “Logan” street gangs.

In 2002, Molina pleaded guilty to being an active participant in a criminal 

street gang and carrying a concealed firearm in a vehicle (Pen. Code, § 12025, subds. 

(a)(1) & (b)(3)2[subd. (b)(3), requires active participant as defined in § 186.22, subd. 

 

1

The facts are taken from police reports. 

2

All further statutory references are to the Penal Code, unless otherwise 

indicated. 
3

(a)3]; the prosecutor dismissed two other firearm charges. The factual basis for his plea 

was he unlawfully possessed a concealed firearm in a vehicle while being an active 

participant in Logan Street. The court suspended imposition of sentence and placed 

Molina on five years’ formal probation. 

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, Molina 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, including an officer’s report and an investigator’s supplemental 

report.

The trial court ordered the OCDA to show cause by filing a return. The 

court invited the OCDA and Molina4to address whether Logan Street, Smalltown, and 

Prestige “are ‘subsets of a primary gang that typically work together’.” In its return, the 

OCDA admitted Molina 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, Molina requested the court issue a ruling.

Acknowledging the parties agreed the conviction should be vacated, the 

trial court denied Molina’s petition because “[t]here [was] no supporting evidence” to 

 

3

Operative January 1, 2012, former section 12025 was recodified, without 

substantive change, as section 25400. (People v. Aguilar (2016) 245 Cal.App.4th 1010, 

1012, fn. 1.)

4 We question whether the trial court intended to invite Molina’s defense 

counsel to offer evidence against her client. 
4

establish Molina acted alone or that the people he was with were not in his gang. After 

reciting the facts, the court stated the following: “This is a case where clearly [three]

people were involved. There is not sufficient evidence presented at this point for a 

conclusion that the three were not members, associates or individuals who claimed 

membership in a gang, or that they were allied in any way. What is clear from the 

statements of [Molina] and co-defendant Valtierra is that they were at the table 

vandalizing it, in possession of a firearm and ammunition. If [Molina] wishes to litigate 

this further, the [OCDA] is ordered to bring with it all information regarding this case and 

the gang affiliation of the [three] individuals present at the time of this offense.” (Italics 

added.) The court stated the parties could respond with an order to show cause (OSC) 

why the court should grant the petition.

Molina filed a petition for writ of mandate in this court. We denied the 

petition. (Molina v. Superior Court (July 26, 2018, G056530) [nonpub. order].) Molina 

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. (Molina v. Superior Court, 

review granted Sept. 19, 2018, S250324.) 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 7, 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, Molina 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 
5

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 Molina 

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 

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 Carla M. Singer accepted the guilty 

plea she was sitting as a magistrate. However, when she pronounced judgment, she 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, Molina sought to have superior 

court judge Kimberly Menninger vacate the felony judgment superior court judge Singer 

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 
6

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 Molina to seek to vacate his conviction. 

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 is contrary to law.

Our conclusion a petition for writ of mandate was not the proper vehicle 

does not mean Molina 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 
7

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 

Molina 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 

186.22, subdivision (a), Molina was entitled to relief but not by a petition for writ of 

mandate.

DISPOSITION

Petition denied without prejudice to Molina moving to withdraw his plea 

and vacate the judgment or seek other appropriate relief.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

FYBEL, J.