People v. Dutra

• Decision Date: 20 December 2006
• Docket Number: No. C051198.,C051198.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sarah Elizabeth DUTRA, Defendant and Appellant.

52 Cal.Rptr.3d 528

145 Cal.App.4th 1359

The PEOPLE, Plaintiff and Respondent, v. Sarah Elizabeth DUTRA, Defendant and Appellant.

No. C051198.

Court of Appeal, Third District.

December 20, 2006.

Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Mathew Chan and Catherine G. Tennant, Deputy Attorneys Genera], for Plaintiff and Respondent.

MORRISON, J.

In a prior opinion we affirmed Sarah Elizabeth Dutra's felony convictions. (People v. Dutra (May 18, 2005), C044075, 2005 WL 1177582 [nonpub. opn.] (Dutra I).) Based on an explicit concession at oral argument by the Attorney General we gave the People the option of accepting a midterm sentence on manslaughter, or "a remand for a sentencing trial." (Dutra I, supra, at p. 31.) The People did not accept the midterm sentence or petition for rehearing or review. The remittitur ordered a sentencing trial.

Because of an intervening decision of the California Supreme Court—People v. Black (2005) 35 Cal.4th 1238, 29 Cal. Rptr.3d 740, 113 P.3d 534 (Black—the trial court did not conduct such a trial. Dutra appealed.

The Attorney General takes the view that although Dutra I represented "law of the case," an exception to the law of the case doctrine exists for changes in the governing law, and the Black decision represents such a change, authorizing the trial court to disobey our remittitur. We disagree.

The trial court was bound not by law of the case but by the terms of our remittitur. A trial court may not disobey a remittitur, as that would amount to overruling the appellate court's decision, thereby violating a basic legal principle:

"Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

The term of the remittitur should have been obeyed by the trial court.

We recognize that under Black, supra, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534, a sentencing trial is not ordinarily necessary before a trial court may impose an upper term sentence under the Determinate Sentencing Law (DSL). However, the apparent anomaly in ordering such a trial for Dutra is largely of the Attorney General's making. First, at oral argument in Dutra I, the Attorney General conceded such a trial was necessary. Because the law was not settled at that time we accepted the concession as an exercise of prosecutorial discretion. Second, the Attorney General did not petition for rehearing to clarify or withdraw the concession and did not petition for review to preserve the issue, which was then pending before the California Supreme Court. The result was the issuance of the remittitur. Although the result gives Dutra more protections than other defendants, specifically, a jury trial on sentencing factors, that does not equate to a miscarriage of justice for her or the People.

We will vacate the sentence with directions.

BACKGROUND

In this high-publicity case, Dutra, a young college student, fell under the sway of con artist Laren Jordan Sims, who had married attorney Larry McNabney and taken control of his affairs. Sims used slow poison to kill McNabney on September 11, 2001; Dutra helped Sims move him, failed to call the police although McNabney was still alive, helped Sims hide the body and helped conceal the fact of his death. McNabney's body was found on February 5, 2002. Sims was arrested in Florida but killed herself before she could be extradited, leaving Dutra to face special circumstance murder charges. The jury convicted Dutra of voluntary manslaughter and accessory after the fact to murder. The trial court imposed the upper term of 11 years for the manslaughter charge. (Dutra I, supra, at pp. 1-2.) On May 14, 2003, Dutra timely filed a notice of appeal.

On June 22, 2004, the United States Supreme Court decided Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely), holding that the Sixth Amendment entitled a Washington defendant to a jury trial on sentencing factors.

On-March 21, 2005, we conducted oral argument in Dutra I.

On May 18, 2005, we issued Dutra I, rejecting her attacks on her convictions. Dutra had also claimed that Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, applied to the DSL. We stated in part: "At oral argument the Attorney General conceded the case had to be reversed for resentencing under Blakely. We agree in part, [f] ... The Attorney General conceded at argument that the sentencing factors relied on by the trial curt were contested, therefore, we cannot find the error harmless." (Dutra I, supra, at pp. 26-27.) We then elaborated by summarizing the trial court's sentencing comments and describing the positive and negative facts about Dutra in the record. (Id. at pp. 27-30.)

Noting that the midterm was six years, we observed that the People, "in consultation with the San Joaquin District Attorney" could either accept the midterm by filing a request for modification of the sentence or they could do nothing, in which case "the remittitur will affirm the convictions and order a remand for a sentencing trial." (Dutra I, supra, at p. 31.)

Dutra filed a petition for review with the California Supreme Court, challenging her convictions. The People did not petition for rehearing or review of our decision.

On June 20, 2005, the California Supreme Court decided Black holding the DSL was unlike the law at issue in Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, and that no jury trial on aggravating factors was required in California. (Black, supra, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534.)

On August 17, 2005, the California Supreme Court denied Dutra's petition for review. Accordingly, on August 23, 2005, our remittitur issued.

On September 12, 2005, the cause was set for a hearing in the trial court. The trial court had received an ex parte letter from the deputy Attorney General who had conceded the Blakely issue, addressed to the district attorney, stating without analysis that Black, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534, vitiated our remittitur.

At the hearing, Dutra's former appellate counsel argued that the trial court was obliged to follow the remittitur. The trial court stated his view that Black, supra, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534 applied:

"THE COURT: ... Therefore, I'm going to rule that the defendant is not entitled to a jury trial.

"MS. THOMAS: May I—

"THE COURT: Don't interrupt. [¶] The defendant is not entitled to a jury trial on the issues of fact and, therefore, the sentencing would stand. And she's not entitled to any further hearing."

Dutra timely filed her appeal.

DISCUSSION

I.

Dutra argues the Black decision is wrong and she wants to preserve the issue for further review, pending the decision in Cunningham v. California, No. 05-6551, argued recently in the United States Supreme Court. The issue is preserved.

II.

We first describe the law of the case doctrine, which applies in both civil and criminal cases:

"`"The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular."' The principle applies to criminal as well as civil matters....

"The principal reason for the doctrine is judicial economy. `Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding.' [Citation.] Because the rule is merely one of procedure and does not go to the jurisdiction of the court [citations], the doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a `manifest misapplication of existing principles resulting in substantial injustice' ([citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation]). The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination." (People v. Stanley (1995) 10 Cal.4th 764, 786-787, 42 Cal.Rptr.2d 543, 897 P.2d 481 (Stanley).)

A mistaken ruling is not enough to avoid the doctrine: "Indeed, it is only when the former rule is deemed erroneous that the doctrine of the law of the case becomes at all important." (Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049; quoted with approval in Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491, 20 Cal.Rptr.3d 890, 100 P.3d 433.) But for purposes of argument we accept that Black, supra, 35 Cal.4th 1238, 29 Cal. Rptr.3d 740, 113 P.3d 534, would invoke the exception to the law of the case doctrine. However, that conclusion does not resolve this case.

As stated above, the law of the case doctrine "does not go to the jurisdiction of the court" and for that reason "will not be adhered to where its application will result in an unjust decision, e.g., where ... the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations." (Stanley, supra, 10 Cal.4th at p. 787, 42 Cal.Rptr.2d 543, 897 P.2d 481.) Here, as we explain, the applicable rule does go to the trial court's...