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                      A158016
MATEO COUNTY,
                                               (San Mateo County
        Respondent;
                                               Super. Ct. No. SC024541A)
THE PEOPLE,
        Real Party in Interest.


        Proposition 66, the Death Penalty Reform and Savings Act of 2016,
made substantial changes to the procedures governing petitions for writs of
habeas corpus in capital cases. Among these changes was ending the practice
of capital defendants initiating habeas proceedings in the Supreme Court,
and instead having the “court which imposed the sentence” decide the
petitions in the first instance. (Pen. Code1, § 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 Proposition 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.

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County, the county where Salcido was convicted of capital murder and
sentenced to death. Rather than contest the habeas petition in San Mateo
County, the 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, by transferring Salcido’s petition
to San Mateo County pursuant to Proposition 66, has already determined
that San Mateo County is the “court which imposed the sentence” and must
therefore decide the petition. Neither 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 statutory 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 People’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 Reginald

      Specifically, Salcido was charged with six counts of first degree
      2

murder, one count of second degree murder, and two counts of attempted
murder.

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Littrell of Sierra County 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 in 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] the procedures governing habeas corpus petitions in capital
cases.” (See Briggs, at p. 824.) 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 should 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 Supreme Court “may” transfer the petition to the “court which imposed



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the sentence.” (§ 1509, 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 Code 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 People,
represented by the Sonoma County 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 motion.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 should 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 petition 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).)


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show 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 to 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).” Section 1509, subdivision (g) gives the
Supreme Court discretion to transfer a habeas petition “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. As 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 which 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 issues 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 authorities 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.)

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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.”].) Likewise, 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 provide 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 which court imposed the sentence under section
1509, “[o]ur first task is to examine the language 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 meaning of “court which imposed the sentence” (§ 1509) is clear
and 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 observed in Salcido’s direct



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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 looking 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
court.” (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 jurisdiction 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 rules 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 commenced in
such court.” (Cal. Rules of Court, former 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 the



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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 County. 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 the 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 court which imposed the sentence. The defendant in Peoples was charged
with capital murder in San Joaquin County. Before 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 County judge. (Id. at p. 790.) After
the jury recommended the death sentence, the judge reconvened proceedings
in the San Joaquin courthouse, where it sentenced the defendant to death.
(Id. at pp. 790–791.) The defendant argued on appeal that the trial court
“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 relocating 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 that regardless
of where it sat, it would still operate under the jurisdiction of Alameda
County.” (Id. at p. 791, italics added.) The Supreme Court then noted that
after the defendant’s trial, the Judicial Council promulgated current rule



                                        8
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
presumption 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 misunderstands 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 later.”
(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
subdivision (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 sentence” 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 does not
allow the petition then to be transferred elsewhere. For this reason, the



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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 victims, 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 court 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.




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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)



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