Molina v. Super. Ct.

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. G056530

THE SUPERIOR COURT OF ORANGE (Super. Ct. No. 02CF0701) COUNTY, OPINION Respondent;

THE PEOPLE,

Real Party in Interest.

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.

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. 1 FACTS 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. 2 (a)(1) & (b)(3) [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.