P. v. Superior Court (Mitchell)

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Petitioner,
v.
THE SUPERIOR COURT OF VENTURA COUNTY,
Respondent;
RICHARD ALLEN MITCHELL,
Real Party in Interest.
S281950
Second Appellate District, Division Six
B326653
Ventura County Superior Court
2018009315
December 12, 2024
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Evans concurred.

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PEOPLE v. SUPERIOR COURT (MITCHELL)
S281950
Opinion of the Court by Guerrero, C. J.
In this matter, we consider (1) the scope and limits of the
People’s ability to challenge a trial court order in pretrial
criminal proceedings by appeal or petition for writ of mandate
and (2) the duration and effect of a temporary stay ordered by
an appellate court in writ proceedings.
In 2018, Richard Allen Mitchell was charged with one
felony count of resisting an executive officer (Pen. Code, § 69,
subd. (a)) and one misdemeanor count of possessing a controlled
substance (Health & Saf. Code, § 11377, subd. (a)). The
prosecution alleged, among other things, that Mitchell had a
prior “strike” conviction for battery with serious bodily injury.
(Pen. Code, §§ 243, subd. (d), 667, subd. (d)(1).) Five years later,
with a jury trial about to begin, the trial court ordered that the
felony count be reduced to a misdemeanor, ostensibly under
Penal Code section 17, subdivision (b).1 The court then granted
a defense motion to continue the trial and referred the matter
for screening for entry into a veterans court program.
1 Among other things, Penal Code section 17, subdivision (b)
identifies circumstances in which a court may declare an
alternative felony-misdemeanor offense (or “wobbler”) that has
been charged as a felony to be a misdemeanor. Resisting an
executive officer is such an offense. Subsequent statutory
references are to the Penal Code unless otherwise specified.

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
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The People, represented by the Ventura County District
Attorney, sought review of the trial court’s order by filing both
an appeal and a petition for writ of mandate in the Court of
Appeal. In his petition, the district attorney argued that the
trial court had no statutory authority to reduce the felony charge
to a misdemeanor prior to sentencing. He prayed for a writ
directing the trial court to vacate its order and reinstate the
felony charge. The Court of Appeal stayed further proceedings
in the trial court and issued an order to show cause why the
relief sought by the district attorney should not be granted. The
appeal proceeded separately.
Following briefing on the order to show cause, the Court
of Appeal held that the trial court’s order was unauthorized and
granted the requested relief. (People v. Superior Court
(Mitchell) (2023) 94 Cal.App.5th 595, 598–599 (Mitchell).) In
addition to the merits of the trial court’s order, the Court of
Appeal focused on the threshold issue of appealability. It held
that the order was appealable by the People under two statutory
provisions, either as an order setting aside a portion of the
charging document (here, an information) or an order
dismissing or otherwise terminating a portion of the action. (Id.
at p. 605; see § 1238, subd. (a)(1), (8).) Further, because the
Court of Appeal held the order was appealable, it determined
that the order was also challengeable by petition for writ of
mandate in an appropriate circumstance. The Court of Appeal
disagreed with an earlier opinion by the same district and
division, which had held that an identical order was not
appealable. (Mitchell, at p. 599; see People v. Bartholomew
(2022) 85 Cal.App.5th 775, 778 (Bartholomew).)
We considered a similar question of appealability in People
v. Williams (2005) 35 Cal.4th 817 (Williams). There, the People

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
3
attempted to appeal a magistrate’s order declaring a wobbler
offense charged as a felony to be a misdemeanor. (Id. at p. 820.)
We held that such an order was not appealable. (Id. at p. 830.)
We rejected the People’s argument that the order “ ‘effectively
dismissed the felony offenses and precludes the People from
pursuing them,’ and thus is appealable because it set aside, or
dismissed, or otherwise terminated all or part of the action.”
(Ibid.) To the contrary, we concluded that the order “did not
preclude the People from prosecuting the wobbler offenses
charged against defendant; it simply determined that these
offenses were misdemeanors rather than felonies.” (Ibid.)
The Court of Appeal below believed Williams was
distinguishable because the order in Williams occurred at the
preliminary hearing and was authorized by statute (§ 17,
subd. (b)(5)), whereas the order here occurred after the
preliminary hearing and was therefore unauthorized. (Mitchell,
supra, 94 Cal.App.5th at p. 603.) We disagree. The reasoning
of Williams rests on the nature and effect of the order, and it
applies equally whether the order is authorized by statute or
not. An order reducing a wobbler offense charged as a felony to
a misdemeanor is “not ‘[a]n order setting aside all or any portion
of the indictment, information, or complaint’ within the
meaning of subdivision (a)(1) of section 1238, nor [is] it ‘[a]n
order or judgment dismissing or otherwise terminating all or
any portion of the action’ under subdivision (a)(8) of
section 1238.” (Williams, supra, 35 Cal.4th at p. 830.) This
conclusion is unaffected by the unauthorized nature of the order
here.
Nonetheless, the inability to appeal does not necessarily
demonstrate that the Court of Appeal erred in granting writ
relief. Even where the People cannot appeal, writ review is

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
4
available “when a trial court has acted in excess of its
jurisdiction and the need for such review outweighs the risk of
harassment of the accused.” (People v. Superior Court (Stanley)
(1979) 24 Cal.3d 622, 626 (Stanley).) An act in excess of
jurisdiction may be found where the trial court’s order is not
authorized by statute. (People v. Superior Court (Edmonds)
(1971) 4 Cal.3d 605, 609 (Edmonds).) Here, it is clear the order
reducing the charged felony to a misdemeanor was
unauthorized. (People v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 973, fn. 2 (Alvarez).) Writ review of such an
unauthorized order would therefore be warranted where the
balance of interests weighs in favor of review.
However, given the unusual procedural circumstances of
this matter, we decline to address the balance of interests here.
(See Cal. Rules of Court, rule 8.516(b)(3).) These unusual
circumstances give rise to the second issue before us, concerning
the duration and effect of the Court of Appeal’s temporary stay.
After we granted review, the district attorney informed this
court that the trial court had already acted in accordance with
the Court of Appeal’s opinion. At the request of the prosecution,
and notwithstanding the Court of Appeal’s temporary stay, the
trial court reinstated the felony charge against Mitchell. In
subsequent proceedings, the prosecution moved to reduce the
felony charge to a misdemeanor, thus agreeing to the very result
the People challenged by the writ petition at issue here.
Mitchell then pleaded guilty to both counts (now
misdemeanors), and the trial court imposed a modest fine and
sentenced him to time served.
Believing the case to be moot, the district attorney moved
to dismiss review in this court. We denied the motion but
directed the parties to address in their briefing the significance

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
5
of the Court of Appeal’s temporary stay on the further
proceedings in the trial court.
The parties now agree that the trial court’s actions
violated the temporary stay ordered by the Court of Appeal. The
prosecution acted improperly by seeking to recommence the
criminal proceedings against Mitchell. The Court of Appeal did
not issue any order lifting the temporary stay, and the mere
filing of the Court of Appeal’s opinion had no effect on the stay.
The parties further agree that the trial court lacked jurisdiction
to reinstate the felony charge, accept Mitchell’s change of plea,
or enter judgment. These further proceedings in the trial court
are void, and they do not moot the judgment of the Court of
Appeal.
Because we hold that the trial court’s order was
potentially subject to review as an order in excess of jurisdiction,
but we decline to consider whether the Court of Appeal
reasonably determined that writ relief was proper, the correct
disposition is to affirm its judgment. However, given the length
of time the charges against Mitchell have been pending, the
district attorney states he would be “open” to an order barring
further litigation of the charges against Mitchell. While such an
order appears reasonable under the circumstances, the parties
have not identified any mechanism for this court to order such
relief. Upon receipt of the remittitur, the trial court should
consider whether to dismiss the charges in the interest of
justice. (§ 1385.)
I. FACTUAL AND PROCEDURAL BACKGROUND
The charges against Mitchell arose from an altercation
with police on April 21, 2016. According to preliminary hearing
testimony, police officers went to a residence in Simi Valley,

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California to investigate a report of domestic violence. The
dispatcher told officers that a woman was screaming for help
and saying, “Please hurry” and “He’s going to kill me.” A woman
at the residence had a red mark above her left eye, and she told
an officer that Mitchell had punched her. Mitchell was in a side
yard, and he appeared to be under the influence of a controlled
substance. The officers told Mitchell they wanted to speak with
him. As the officers approached, Mitchell assumed a “fighting
stance.” One officer knew from previous contacts that Mitchell
commonly carried a knife. The officer attempted to grab
Mitchell’s arm, but Mitchell spun away. As the officer
approached Mitchell again, Mitchell kicked the officer in the left
knee and right shin. A second officer wrestled with Mitchell,
and together with the first officer they were able to handcuff
him. Officers recovered a knife and a clear plastic bag
containing a crystalline substance from Mitchell’s pants
pockets. The substance tested presumptively positive for
methamphetamine.
At the conclusion of the preliminary hearing, the
magistrate found sufficient cause to believe Mitchell had
committed the charged offenses. The People filed an
information reflecting again one felony count of resisting an
executive officer (§ 69, subd. (a)) and one misdemeanor count of
possessing a controlled substance (Health & Saf. Code, § 11377,
subd. (a)). The information further reflected a number of prior
conviction allegations, including that Mitchell had a prior
“strike” conviction for battery with serious bodily injury. (Pen.
Code, §§ 243, subd. (d), 667, subd. (d)(1).)
Four and a half years later, after several pretrial motions
and a number of continuances, the parties announced they were
ready for trial. Following motions in limine, defense counsel

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“inquir[ed]” whether Mitchell could plead guilty to the
misdemeanor possession charge, if the prosecution would
dismiss the felony charge of resisting an executive officer. The
prosecutor declined the offer, and the trial court said it had no
authority to force such a bargain. However, the court observed
it had been a long time since the offenses were committed, and
it asked whether Mitchell had committed any additional
offenses since then. Defense counsel said she was unaware of
any charges or convictions, other than another misdemeanor
drug possession charge in 2018. The court stated it was
“contemplating” a reduction under section 17, subdivision (b) of
the charge alleging resistance against an executive officer “in
light of what seems to be an absence of misbehavior since then.”
The offense of resisting an executive officer is an alternative
felony-misdemeanor offense (or wobbler), which the prosecution
had charged as a felony. Section 17, subdivision (b) authorizes
a court to declare such an offense to be a misdemeanor for all
purposes under certain situations. The court observed that such
a declaration “would, of course, be over the People’s objection.”
During a recess, the trial court reviewed the preliminary
hearing transcript and the available information regarding
Mitchell’s prior criminal history. When the hearing resumed,
the prosecutor informed the court that, in addition to the charge
referenced by defense counsel, Mitchell had been arrested and
convicted of misdemeanor drug possession in 2018 in Los
Angeles County. Mitchell had also been arrested but not
charged for two more drug-related offenses in Ventura County
in 2018.
After some preliminary remarks, the court made the
following ruling: “Given what I know of his criminal history and
specifically his history since this offense, and the age of the

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Opinion of the Court by Guerrero, C. J.
8
offense which is nine years ago, the Court is satisfied it would
be appropriate to grant a defense motion, or the Court’s own
motion for that matter, to reduce [the felony charge] to a
misdemeanor pursuant to Penal Code section 17(b) . . . . That is
the ruling of the Court over the People’s strong objection.” The
court noted that Mitchell’s maximum exposure was now
365 days in county jail, and it asked what Mitchell wanted to do.
Mitchell requested a continuance of trial, now that it was a
misdemeanor case, so that he could be screened for participation
in a veterans court program. (§ 1170.9.) The court granted the
continuance and referred Mitchell for possible participation in
the program.2
As noted, the People appealed the court’s order and filed a
petition for writ of mandate with a request for an immediate
stay. In his petition, the district attorney argued that the trial
court had acted “beyond [its] power and jurisdiction” by
declaring the wobbler offense to be a misdemeanor after the
preliminary hearing but before sentencing, in circumstances not
authorized by section 17, subdivision (b). The district attorney
sought a peremptory writ of mandate directing the trial court to
vacate its order and to reinstate the charge as a felony.
Three days after the petition was filed, the Court of Appeal
ordered a temporary stay of the trial court proceedings:
“Pending this court’s review of the writ petition, we grant a
temporary stay of further proceedings in the superior court in
People v. Richard Allen Mitchell, Ventura County Superior
2 Section 1170.9 is not itself limited to misdemeanor
defendants. (§ 1170.9, subd. (a).) However, at oral argument,
Mitchell’s counsel stated that the Ventura County veterans
court is open only to individuals facing misdemeanor charges.

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Court Case No. 2018009315.” Five weeks after that, the Court
of Appeal issued an order to show cause “why the relief prayed
for in the petition for writ of mandate should not be granted.”
After briefing and argument, the Court of Appeal granted
relief in a published opinion. (Mitchell, supra, 94 Cal.App.5th
at p. 599.) It recounted the procedural history of the writ
proceedings and identified the related appeal. (Id. at pp. 599–
600.) The Court of Appeal stated that it had “stayed further
proceedings in the superior court” but did not otherwise address
the temporary stay. (Id. at p. 600.) On the merits, the Court of
Appeal held that the trial court’s order was not authorized by
statute. (Ibid.) The order did not conform to the circumstances
identified in section 17, subdivision (b) and there was no other
statutory authority for the order. (Mitchell, at pp. 600–601.)
Regarding appealability, the Court of Appeal began with
the well-settled principle that “ ‘[t]he prosecution in a criminal
case has no right to appeal except as provided by statute.’ ”
(Mitchell, supra, 94 Cal.App.5th at p. 601.) It noted that
section 1238, subdivision (a)(1) and (8) allow the prosecution to
appeal an order setting aside a portion of a criminal complaint
or information and an order dismissing or otherwise
terminating a portion of the action. (Mitchell, at p. 601.) In its
view, “When the superior court reduced the felony wobbler to a
misdemeanor, it actually set aside or terminated a ‘portion’ of
the information or action. The ‘portion’ set aside or terminated
was the wobbler’s felony attributes.” (Ibid.) The Court of
Appeal recognized this court’s apparently contrary holding in
Williams that such an order “does not set aside or terminate a
portion of the complaint or action within the meaning of
section 1238,” but it found Williams to be distinguishable. (Id.
at p. 602, italics added.) The order at issue in Williams was

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
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authorized by statute, whereas the order here was
unauthorized. (Id. at pp. 603–604.) The Court of Appeal
construed section 1238, subdivision (a)(1) and (8) as “permitting
the People to appeal from the superior court’s postpreliminary
hearing, pretrial order reducing the felony wobbler to a
misdemeanor because the unauthorized order was tantamount
to a dismissal of the felony offense.” (Mitchell, at p. 605.) The
Court of Appeal granted the requested writ and indicated it
would dismiss the related appeal as moot. (Id. at p. 607.)
Mitchell petitioned for this court’s review. While
Mitchell’s petition for review was pending, and without the
Court of Appeal having issued its remittitur, the prosecution
invited the trial court to act on the Court of Appeal’s opinion. It
submitted a proposed order stating that the court “has
jurisdiction over this matter” and summarizing Mitchell’s
holding. The proposed order quoted the opinion’s disposition:
“ ‘Let a peremptory writ of mandate issue directing the Superior
Court of Ventura County to vacate its order reducing the felony
wobbler to a misdemeanor and to reinstate the felony charge.’
(Mitchell, supra, 94 Cal.App.5th at [p.] 607.)” It then proposed
that the trial court follow this direction.
The trial court adopted the prosecution’s proposed order,
vacated its earlier order reducing the wobbler offense to a
misdemeanor, and reinstated the felony charge. However, a
month later — while Mitchell’s petition for review was still
pending in this court — the prosecution moved to reduce the
felony charge back to a misdemeanor. The court granted the
motion and accepted Mitchell’s guilty pleas to the charged
offenses, now both misdemeanors. The court imposed a
$150 fine and various fees, and it sentenced Mitchell to nine
days in jail, which Mitchell had already served.

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Seven days after Mitchell’s guilty pleas and sentencing,
this court granted his petition for review of the Court of Appeal’s
earlier opinion. We directed the parties to brief and argue the
following issues: “(1) Does Penal Code section 1238 authorize
an appeal by the People from a superior court’s post-preliminary
hearing, prejudgment order reducing a felony ‘wobbler’ offense
to a misdemeanor? (2) If not, may the People obtain review of
the order by petition for extraordinary writ?” Our order
included the advisement that “[t]he stay ordered by the Court of
Appeal remains in effect.”
As noted, the district attorney moved to dismiss review.
He argued that the issues were moot in light of subsequent
proceedings in the trial court, which “fully resolved” the criminal
charges against Mitchell. In opposition, Mitchell did not directly
dispute that the matter was moot. Instead, he invited this court
to exercise its discretion to decide the case, notwithstanding any
potential mootness.
We denied the district attorney’s motion. But in our denial
order, we directed the parties to brief and argue two additional
issues: “(1) In the absence of further order or other direction,
when does a Court of Appeal’s temporary stay of superior court
criminal proceedings against a defendant expire? (2) If the
temporary stay issued by the Court of Appeal had not expired at
the time of defendant’s guilty plea, what was the effect, if any,
of the stay on the resolution of defendant’s criminal
proceedings?”

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II. DISCUSSION
A. Trial Court Discretion Under Penal Code
Section 17
Section 17, subdivision (a) identifies three classes of
criminal offenses in California: felonies, misdemeanors, and
infractions. “A felony is a crime that is punishable with death,
by imprisonment in the state prison, or, notwithstanding any
other law, by imprisonment in a county jail under the provisions
of subdivision (h) of Section 1170. Every other crime or public
offense is a misdemeanor except those offenses that are
classified as infractions.” (§ 17, subd. (a).) “There is, however,
a special class of crimes involving conduct that varies widely in
its level of seriousness. Such crimes, commonly referred to as
‘wobbler[s]’ [citation], are chargeable or, in the discretion of the
court, punishable as either a felony or a misdemeanor . . . .”
(People v. Park (2013) 56 Cal.4th 782, 789 (Park).)
Section 17, subdivision (b) identifies the circumstances in
which a wobbler offense will be treated as a misdemeanor. One
circumstance lies within the discretion of the prosecuting
attorney. Unless a defendant objects, a wobbler offense is a
misdemeanor for all purposes when “the prosecuting attorney
files in a court having jurisdiction over misdemeanor offenses a
complaint specifying that the offense is a misdemeanor.” (§ 17,
subd. (b)(4).) This circumstance is not relevant here because the
wobbler offense charged against Mitchell was identified in the
complaint as a felony.
The remaining circumstances confer discretion on the
court. They “outline[] the procedural mechanisms” by which a
magistrate or trial court “may classify an offense as a
misdemeanor.” (Alvarez, supra, 14 Cal.4th at p. 974, fn. 4.)

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Section 17, subdivision (b)(5) authorizes a magistrate to reduce
a wobbler offense charged as a felony to a misdemeanor at or
before a preliminary hearing or before holding the defendant to
answer on the charge. Section 17, subdivision (b)(1) and (3)
authorize a trial court to order such a reduction at sentencing.
Under the former, a wobbler charged as a felony will be treated
as a misdemeanor for all purposes if the court “impos[es] a
punishment other than imprisonment in the state prison or
imprisonment in a county jail under the provisions of
subdivision (h) of Section 1170.” (§ 17, subd. (b)(1).) Under the
latter, a wobbler charged as a felony will be treated as a
misdemeanor for all purposes if “the court grants probation to a
defendant and at the time of granting probation, or on
application of the defendant or probation officer thereafter, the
court declares the offense to be a misdemeanor.” (§ 17,
subd. (b)(3).) Similarly, section 17, subdivision (b)(2) authorizes
a trial court to designate a wobbler offense as a misdemeanor
“upon committing the defendant to the Division of Juvenile
Justice.”
Under these provisions, unless the magistrate declares the
offense to be a misdemeanor at the preliminary hearing, “ ‘ “[a]
wobbler offense charged as a felony is regarded as a felony for
all purposes until imposition of sentence or judgment.
[Citations.] If state prison[3] is imposed, the offense remains a
felony; if a misdemeanor sentence is imposed, the offense is
thereafter deemed a misdemeanor.” ’ ” (People v. Tran (2015)
3 Under current law, following public safety realignment
legislation, a wobbler will remain a felony if the trial court
imposes a state prison term or a county jail term under
section 1170, subdivision (h). (See § 17, subd. (b)(1).)

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242 Cal.App.4th 877, 885.) If probation is granted, the offense
will be a misdemeanor if the trial court declares it to be so at the
time of granting probation or afterward. (Ibid.; see Park, supra,
56 Cal.4th at p. 793.)
“No provision of section 17, subdivision (b), authorizes the
superior court judge to [declare a wobbler to be a misdemeanor]
prior to judgment or a grant of probation.” (Alvarez, supra,
14 Cal.4th at p. 973, fn. 2.) “ ‘[S]ection 17 is sui generis. It
specifically leaves the determination of the nature of the
conviction to the discretion of the judge to be determined at
sentencing.’ ” (Id. at p. 975.)
Thus, in People v. Silva (1995) 36 Cal.App.4th 231 (Silva),
the appellate court found error where a trial court purported to
declare a felony wobbler offense to be a misdemeanor after the
preliminary hearing but before sentencing. “Section 17,
subdivision (b)(5) simply was not applicable and the events had
not yet occurred to trigger the superior court’s authority to
consider reduction to a misdemeanor under section 17,
subdivision (b)(1) or (3).” (Id. at p. 235.) The trial court was
therefore “without jurisdiction” to grant the defendant’s motion
seeking such relief. (Id. at p. 233.) Similarly, in People v.
Superior Court (Jalalipour) (2015) 232 Cal.App.4th 1199, 1205
(Jalalipour), the appellate court found that the trial court “had
no authority under section 17(b) to grant [the defendant’s]
motion at the point in the proceeding when it was heard.” “No
judgment, entry of a plea, or finding of guilt had occurred to
bring subdivision (b)(1) or (3) into play. Nor did
subdivision (b)(5) apply; the preliminary examination had
already taken place and [the defendant] had been held to answer
pursuant to section 872.” (Ibid.) The order was therefore
“unauthorized under section 17(b).” (Ibid.)

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The Court of Appeal here correctly held that the trial
court’s order was unauthorized as well. (Mitchell, supra,
94 Cal.App.5th at p. 600.) The preliminary hearing had already
occurred, so section 17, subdivision (b)(5) was inapplicable. Any
sentencing was still to come, and it was only a possibility, since
Mitchell had not been convicted or pled guilty. Section 17,
subdivision (b)(1) and (3) were therefore inapplicable as well.
As the Court of Appeal below explained, “There is no other
statutory authority for the superior court’s order reducing the
felony wobbler to a misdemeanor over the People’s objection.
‘[I]f [at the preliminary hearing] the magistrate finds the People
have appropriately charged the defendant with a felony, the
defendant is held to answer for the felony charge. [Citation].
Thereafter, [until sentencing] only the prosecution may reduce
the charge, because the executive alone is entrusted with “[t]he
charging function” and has the sole “prerogative to conduct plea
negotiations.” ’ ” (Mitchell, at p. 600.) The trial court had no
authority to reduce the felony charge to a misdemeanor before
it was called upon to exercise its discretion at sentencing.
B. Appealability Under Penal Code Section 1238
Separate from the trial court’s authority to enter such an
order, however, is the People’s ability to challenge it. The Court
of Appeal held that the People had a statutory right to appeal
the order. We disagree.
“The prosecution in a criminal case has no right to appeal
except as provided by statute. [Citation.] ‘The Legislature has
determined that except under certain limited circumstances the
People shall have no right of appeal in criminal cases.
[Citations.] . . . [¶] The restriction on the People’s right to
appeal . . . is a substantive limitation on review of trial court

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determinations in criminal trials.’ [Citation.] ‘Appellate review
at the request of the People necessarily imposes substantial
burdens on an accused, and the extent to which such burdens
should be imposed to review claimed errors involves a delicate
balancing of the competing considerations of preventing
harassment of the accused as against correcting possible errors.’
[Citation.] Courts must respect the limits on review imposed by
the Legislature ‘although the People may thereby suffer a wrong
without a remedy.’ ” (Williams, supra, 35 Cal.4th at pp. 822–
823.)
“Section 1238 . . . governs the People’s appeals from
orders or judgments of the superior courts.” (People v. Douglas
(1999) 20 Cal.4th 85, 89–90 (Douglas).) The People assert that
two provisions of that statute are relevant here. First,
section 1238, subdivision (a)(1) allows an appeal by the People
from “[a]n order setting aside all or any portion of the
indictment, information, or complaint.” Second, section 1238,
subdivision (a)(8) allows an appeal by the People from “[a]n
order or judgment dismissing or otherwise terminating all or
any portion of the action.”
In Williams, this court considered whether these two
provisions authorized the People’s appeal of an order made at
the preliminary hearing declaring two wobbler offenses charged
as felonies to be misdemeanors. (Williams, supra, 35 Cal.4th at
p. 820.) The People argued that the order “ ‘effectively
dismissed the felony offenses and precludes the People from
pursuing them,’ and thus is appealable because it set aside, or
dismissed, or otherwise terminated all or part of the action.” (Id.
at p. 830.) We disagreed: “The magistrate’s order under
section 17(b)(5) did not preclude the People from prosecuting the
wobbler offenses charged against defendant; it simply

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determined that these offenses were misdemeanors rather than
felonies.” (Ibid.) “[T]he charged offense has been modified . . . ,
but it has not been dismissed or otherwise terminated.” (Id. at
pp. 831–832.)
As noted, the Court of Appeal below found Williams
distinguishable. (Mitchell, supra, 94 Cal.App.5th at p. 603.) In
Williams, the magistrate’s order was authorized by section 17,
subdivision (b)(5), whereas the trial court’s order here was
“without statutory authority.” (Mitchell, at p. 603.) The Court
of Appeal relied on our statement in Williams that we would not
opine on the correctness of an earlier case, People v. Booker
(1994) 21 Cal.App.4th 1517. (Mitchell, at pp. 602–603; see
Williams, supra, 35 Cal.4th at p. 831, fn. 10.)
We disagree that Williams is distinguishable. The
unauthorized nature of the trial court’s order here has no
bearing on whether it is an order setting aside a portion of the
information or an order dismissing or otherwise terminating a
portion of the action under section 1238, subdivision (a)(1) and
(8). Just as in Williams, it is neither. The order “did not
preclude the People from prosecuting the wobbler offenses
charged against defendant; it simply determined that these
offenses were misdemeanors rather than felonies.” (Williams,
supra, 35 Cal.4th at p. 830.) “[T]he charged offense has been
modified . . . , but it has not been dismissed or otherwise
terminated.” (Id. at pp. 831–832.) As in Williams, we continue
to express “no view” on the unique circumstances involved in
Booker. (Id. at p. 831, fn. 10.)
The district attorney relies on People v. Superior Court
(Vidal) (2007) 40 Cal.4th 999, 1003, which held that the People
could appeal a trial court determination that a defendant was

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
18
ineligible for the death penalty because it was an order
terminating a portion of the action under section 1238,
subdivision (a)(8). But Vidal addressed and expressly
distinguished Williams. We explained, “the magistrate’s order
[in Williams] did not terminate or preclude the People from
pursuing any part of the action, but only modified the charges.”
(Vidal, at p. 1010.) By contrast, the court’s order in Vidal
“precluded the People from pursuing a distinct portion of the
action, the trial on penalty.” (Ibid.) Vidal does not support the
district attorney’s position.
The district attorney points out that we found orders
under section 17, subdivision (b) appealable by the People in
Douglas, supra, 20 Cal.4th 85 and People v. Statum (2002)
28 Cal.4th 682. Both of those opinions, however, involved orders
made at sentencing and therefore implicated different statutory
provisions. Douglas considered a trial court’s order “made
immediately after imposition of sentence was suspended and
probation granted, declaring an alternative felony-misdemeanor
offense . . . to be a misdemeanor under section 17,
subdivision (b)(3).” (Douglas, at p. 88.) Because a grant of
probation is generally considered a judgment for purposes of an
appeal, the trial court’s order was “[a]n order made after
judgment, affecting the substantial rights of the people” (§ 1238,
subd. (a)(5)) and was appealable by the People. (Douglas, at
pp. 90–91.) Statum considered a trial court’s decision at
sentencing, after defendant’s guilty plea to a wobbler charged as
a felony, to declare the offense to be a misdemeanor and impose
a county jail sentence under section 17, subdivision (b)(1).
(Statum, at p. 686.) Because “[a] guilty plea is the ‘legal
equivalent’ of a ‘verdict’ [citation] and is ‘tantamount’ to a
‘finding’ ” (id. at p. 688, fn. 2), the trial court’s “reduction of

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
19
defendant’s felony conviction to a misdemeanor was an ‘order
modifying the verdict . . . by . . . modifying the offense to a lesser
offense’ ” and was appealable by the People under section 1238,
subdivision (a)(6). (Statum, at p. 688.) Neither Douglas nor
Statum support the district attorney’s position that the
prejudgment (indeed, pretrial) order here is appealable.
The district attorney references several appellate court
opinions where the People appealed from the trial court’s
sentencing decision, on the theory that a prior wobbler reduction
order made the sentence “unlawful” and therefore appealable
under section 1238, subdivision (a)(10). (See People v. Trausch
(1995) 36 Cal.App.4th 1239, 1243, fn. 5; People v. Vessell (1995)
36 Cal.App.4th 285, 289; see also People v. Prothero (1997)
57 Cal.App.4th 126, 128; People v. Carranza (1996)
51 Cal.App.4th 528, 531.) These opinions are inapposite
because the trial court here did not impose a sentence, lawful or
unlawful. Finally, the district attorney relies on Silva, supra,
36 Cal.App.4th 231, but that appeal also followed sentencing.
Moreover, the opinion did not discuss appealability at all. Silva
does not aid the district attorney either.4
4 The district attorney also cites People v. McKee (1968)
267 Cal.App.2d 509, 510, which considered the appealability of
a trial court order directing the prosecution to file an amended
information replacing the previously charged offense of murder
with the offense of involuntary manslaughter. McKee concluded
“that the court’s order was for all intents and purposes a
dismissal of the murder charge and should be so treated in this
appeal.” (Id. at p. 513.) It was therefore appealable as an order
setting aside a portion of the information. (Ibid.; see § 1238,
subd. (a)(1).) Here, unlike McKee, the trial court’s order did not
preclude the People from prosecuting the charged offense. It

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20
The Court of Appeal below asserted, “It would be absurd
to allow an appeal from the superior court’s statutorily
authorized order reducing a felony wobbler to a misdemeanor at
the time of sentencing or after suspending the imposition of
judgment and granting probation, but to bar an appeal from the
court’s unauthorized pretrial order accomplishing the same
result.” (Mitchell, supra, 94 Cal.App.5th at p. 605.) But the
procedural posture of the proceedings matters. Among other
things, the People’s appeal from a pretrial order carries with it
the potential for prejudicial delay in a way that the People’s
appeal following trial does not. As we explained in Williams,
“Permitting a pretrial appeal by the People while the guilt of the
defendant remained at issue would significantly delay the
proceedings and impact the defendant’s right to a speedy trial.
The Legislature has permitted such pretrial appeals by the
People of charges that have not been dismissed or set aside only
in very limited circumstances.” (Williams, supra, 35 Cal.4th at
p. 833.) This case does not fall within the limited circumstances
identified by the Legislature. We disapprove People v. Superior
Court (Mitchell), supra, 94 Cal.App.5th 595, to the extent it is
inconsistent with this opinion.5
merely determined the offense must be prosecuted as a
misdemeanor. It is not equivalent to a dismissal. (Williams,
supra, 35 Cal.4th at p. 830.)
5 The district attorney does not raise the argument —
rejected in Bartholomew, supra, 85 Cal.App.5th at pages 778
through 779 — that the order is appealable under section 1238,
subdivision (a)(6) as “[a]n order modifying the verdict or finding
by reducing the degree of the offense or the punishment imposed
or modifying the offense to a lesser offense.” As noted, no
“verdict” or “finding” had been made in Mitchell’s case.

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
21
C. Writ Review Under Code of Civil Procedure
Section 1085
Although we conclude the People have no right to appeal,
that conclusion does not necessarily foreclose all review of
pretrial orders declaring wobbler offenses charged as felonies to
be misdemeanors. Code of Civil Procedure section 1085 allows
the People to seek writ review under appropriate circumstances.
(People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497
(Howard); see Edmonds, supra, 4 Cal.3d at p. 608.) These
circumstances are ordinarily quite limited, but where the People
may not appeal, writ review is available “when a trial court has
acted in excess of its jurisdiction and the need for such review
outweighs the risk of harassment of the accused.” (Stanley,
supra, 24 Cal.3d at p. 626.) We hold that a trial court’s
unauthorized order reducing a wobbler offense charged as a
felony to a misdemeanor is an act in excess of jurisdiction, and
it is therefore reviewable by writ when the balance of interests
supports the intervention of a higher court.
“[A]s a general rule the People may not seek an
extraordinary writ when there is no right to appeal.” (Williams,
supra, 35 Cal.4th at pp. 833–834.) “The restriction on the
People’s right to appeal is not merely a procedural limitation
allocating appellate review between direct appeals and
extraordinary writs but is a substantive limitation on review of
trial court determinations in criminal trials.” (Howard, supra,
69 Cal.2d at p. 498; see Williams, at p. 823 [recognizing that
“ ‘the People may thereby suffer a wrong without a remedy’ ”].)
Thus, “Mandate is not available to the prosecution for
review of ‘ordinary judicial error’ [citation] or even ‘egregiously
erroneous’ orders [citations] when the order or ruling ‘on its face
is a timely exercise of a well-established statutory power of trial

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
22
courts . . . from which no appeal is provided in section 1238.’
[Citation.] Were the rule otherwise, ‘ “the People [would have]
the very appeal which the Legislature has denied to them.” ’ ”
(Stanley, supra, 24 Cal.3d at p. 626.)
However, where a trial court acts “in excess of its
jurisdiction,” a writ of mandate may be available. (Stanley,
supra, 24 Cal.3d at p. 626.) For example, in Edmonds, this court
granted writ relief where the trial court “had no jurisdiction to
entertain” a renewed motion to suppress under section 1538.5.
(Edmonds, supra, 4 Cal.3d at p. 606.) Under that statute, “[a]
defendant is permitted to renew, at a special hearing in the
superior court held prior to trial, a motion to suppress which
was previously denied at the preliminary hearing. However, no
provision is made for renewing a motion to suppress at trial.”
(Id. at p. 609.) Because the statute limited renewed motions to
pretrial proceedings, and in fact the superior court had already
denied one such renewed motion, “the superior court had no
jurisdiction or discretion to entertain” a second renewed motion
at trial. (Id. at p. 611.) The superior court “exceeded its
jurisdiction in granting the motion.” (Ibid.) Moreover, because
the underlying bench trial had concluded, and the trial court
had granted the motion to suppress prior to entering judgment,
there was “no danger of further trial or retrial” and the matter
could be “remanded to the trial court for judgment.” (Id. at
p. 609.)
Here, as discussed, section 17, subdivision (b) did not
authorize the trial court to declare the felony wobbler to be a
misdemeanor prior to trial and after the preliminary hearing.
(See Alvarez, supra, 14 Cal.4th at p. 973, fn. 2 [“No provision of
section 17, subdivision (b), authorizes the superior court judge
to [declare a wobbler to be a misdemeanor] prior to judgment or

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
23
a grant of probation”]; Jalalipour, supra, 232 Cal.App.4th at
p. 1205; Silva, supra, 36 Cal.App.4th at p. 233.) The statute
specifies the circumstances in which a trial court may declare a
felony wobbler to be a misdemeanor, and those circumstances do
not apply here. Just as the trial court in Edmonds exceeded its
jurisdiction when it granted an unauthorized motion to suppress
at trial, the trial court here likewise exceeded its jurisdiction
when it granted its own unauthorized motion to declare the
charged felony to be a misdemeanor. (See People v. Superior
Court (Mitchell) (2010) 184 Cal.App.4th 451, 458 [an “act that
exceeds a grant of statutory power” is an act in excess of
jurisdiction].)
Resisting this conclusion, Mitchell relies on People v.
Municipal Court (Kong) (1981) 122 Cal.App.3d 176 (Kong).
Kong, however, supports the possibility of writ review under the
circumstances here. Kong reviewed Edmonds and correctly
summarized its principles: “The [Edmonds] court held that
though no specific statutory authority existed for mandate to
issue on behalf of the People to set aside a suppression order
made during trial, nevertheless, under general principles of law,
if the trial court had no jurisdiction to entertain the renewed
suppression motion at trial, the People would be entitled to
mandate.” (Id. at p. 182.) “The [Edmonds] court concluded that
the trial court could not entertain a renewed motion to suppress
made during trial. Therefore, the trial court had no jurisdiction
of the subject matter, i.e., the renewed motion to suppress.” (Id.
at p. 183.)
Kong was presented with a situation, however, where the
trial court did have jurisdiction to make the challenged order.
Although the People argued otherwise, Kong held that a
defendant who requests a postindictment preliminary hearing

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
24
enjoys all of the normal protections of a preliminary hearing.
(Kong, supra, 122 Cal.App.3d at p. 185.) These protections
include the magistrate’s discretion under section 17,
subdivision (b)(5) to declare wobbler offenses charged as felonies
to be misdemeanors. (Kong, at p. 186.) Kong therefore
determined that the magistrate’s order under that statute was
authorized and was not in excess of jurisdiction. (Id. at pp. 180,
187.) Here, by contrast, the trial court’s order was not
authorized by statute. The court lacked jurisdiction to enter the
challenged order.6
Thus, writ review is available to challenge an
unauthorized order reducing a wobbler offense charged as a
felony to a misdemeanor where the need for review “outweighs
the risk of harassment of the accused.” (Stanley, supra,
24 Cal.3d at p. 626.) The Court of Appeal below believed that
“there is no reason why the proceedings should be allowed to
continue as a misdemeanor prosecution when the superior court
clearly did not have the authority to reduce the felony wobbler
to a misdemeanor. The continuation of the misdemeanor
prosecution would result in ‘a waste of ever-more-scarce judicial
resources.’ ” (Mitchell, supra, 94 Cal.App.5th at p. 606.)
Another court has observed, “Whether a defendant must plead
guilty to a charged felony, as opposed to a misdemeanor, can
have significant collateral consequences.” (Jalalipour, supra,
232 Cal.App.4th at p. 1208.) An unauthorized wobbler
reduction order may upset the Legislature’s “clear . . . intent to
6 We need not consider whether Kong was correct that the
authorized order there was not reviewable by writ. As in
Williams, we express no view on the issue. (See Williams,
supra, 35 Cal.4th at pp. 833–834.)

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
25
treat a wobbler as a felony for specified purposes
notwithstanding a court’s exercise of discretion to reduce the
offense to a misdemeanor.” (Park, supra, 56 Cal.4th at p. 794.)
Such an order also risks impinging on the prosecutor’s
established constitutional and institutional role prior to trial.
Where “the magistrate finds the People have appropriately
charged the defendant with a felony, the defendant is held to
answer for the felony charge. [Citation.] Thereafter, only the
prosecution may reduce the charge, because the executive alone
is entrusted with ‘[t]he charging function’ and has the sole
‘prerogative to conduct plea negotiations.’ ” (Jalalipour, supra,
232 Cal.App.4th at pp. 1208–1209; see People v. Clancey (2013)
56 Cal.4th 562, 574.) This risk is illustrated by the possibility
that a trial court’s unauthorized order would allow a defendant
to access pretrial misdemeanor diversion and avoid trial or, as
here, access a local veterans court program open only to
misdemeanor defendants. (See Davis v. Municipal Court (1988)
46 Cal.3d 64, 77.)
On the other hand, writ review necessarily requires time,
which may be significant in some cases, especially for a
defendant who remains in custody pending trial. It also
demands an expenditure of resources by the parties and the
reviewing court. In some cases, circumstances may exist that
would preclude writ review. For example, if a defendant has
already been tried on misdemeanor charges, the danger of a
further trial or retrial would weigh heavily against writ review.
(See Edmonds, supra, 4 Cal.3d at p. 608 [writ review “should be
denied where there exists a danger of further trial or retrial”].)
As noted above, given the unusual procedural
circumstances of this case, we decline to consider whether the

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
26
Court of Appeal reasonably weighed these factors. (See Cal.
Rules of Court, rule 8.516(b)(3) [“The court need not decide
every issue the parties raise or the court specifies”].) It is
sufficient for present purposes to hold that the trial court’s
unauthorized order here was an act in excess of jurisdiction.
The decision whether to allow writ review in any specific case
lies within the discretion of the court considering the People’s
petition for writ relief.
D. Subsequent Proceedings in the Trial Court
As noted, shortly after we granted review, the district
attorney moved to dismiss review because, in his view,
subsequent proceedings in the trial court had rendered this
matter moot. We denied the district attorney’s motion but
requested further briefing to address whether the Court of
Appeal’s temporary stay remained in force and, if so, whether it
had any effect on those subsequent proceedings.
In his briefing, the district attorney no longer contends the
matter is moot. Instead, he agrees with Mitchell that, unless
the Court of Appeal directs otherwise, a temporary stay
continues in effect until the opinion is final and the Court of
Appeal has issued its remittitur. The temporary stay was
therefore in effect when the trial court recommenced the
proceedings below at the request of the prosecution. The parties
further agree that, in light of the temporary stay, the trial court
lacked jurisdiction to conduct those proceedings and they are
void. We agree as well.
Except in very rare cases, neither the filing of a petition
for writ of mandate nor the issuance of an order to show cause
stays the challenged order or further proceedings in the trial
court. (Paul Blanco’s Good Car Co. Auto Group v. Superior

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
27
Court (2020) 56 Cal.App.5th 86, 97–98.) “If an appeal from the
court’s order is perfected, by statute the trial court generally
loses subject matter jurisdiction over any matter affected by the
appeal. [Citations.] This automatic stay provision does not,
however, apply to writ proceedings. [Citation.] Statutes
governing petitions for writs of mandate contain no analogous
automatic stay provision.” (Ibid.) Likewise, an alternative writ
of mandate does not stay any proceedings, since it orders the
trial court “to do the act required to be performed, or to show
cause before the court at a time and place then or thereafter
specified by court order why [it] has not done so.” (Code Civ.
Proc., § 1087, italics added; see Paul Blanco’s, at p. 98.)7
Notwithstanding the lack of an automatic stay, the Court
of Appeal may order a temporary stay of proceedings in the trial
court, either in whole or in part, upon the filing of a writ petition.
“[I]n many cases, the petitioner will want to seek a stay of the
trial court ruling, and perhaps other trial court proceedings,
pending the appellate court’s disposition of the writ petition. A
stay will forestall compliance with the trial court ruling and may
halt other trial court proceedings while the challenged ruling is
before the appellate court.” (Cal. Civil Writ Practice
7 An alternative writ of prohibition, by contrast, explicitly
stays further proceedings to the extent specified in the writ.
“The alternative writ must command the party to whom it is
directed to desist or refrain from further proceedings in the
action or matter specified therein, until the further order of the
court from which it is issued, and to show cause before such
court at a time and place then or thereafter specified by court
order why such party should not be absolutely restrained from
any further proceedings in such action or matter.” (Code Civ.
Proc., § 1104, italics added.)

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
28
(Cont.Ed.Bar. 4th ed. 2023) § 19.2; see Cal. Rules of Court,
rule 8.486(a)(7) [procedural requirements].)
The temporary stay remains in effect according to its
terms or until further order of the Court of Appeal. In some
cases, where the proceedings result in an opinion, the Court of
Appeal will discuss the expiration of the stay in its disposition.
(See, e.g., Claypool v. Superior Court (2022) 85 Cal.App.5th
1092, 1100 [stay “is vacated upon finality of this opinion”];
People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th
485, 504 [stay “is dissolved upon the issuance of the remittitur”];
A.M. v. Superior Court (2021) 63 Cal.App.5th 343, 355 [stay
“vacated upon finality of the opinion as to this court”].) In other
cases, such as this matter, the Court of Appeal’s opinion will not
address the stay.
Where the Court of Appeal’s opinion is silent regarding the
stay, and no other order directs its dissolution, the stay remains
in effect until the proceedings in the Court of Appeal have
concluded, i.e., until the opinion is final and the Court of Appeal
issues its remittitur. The opinion announces the Court of
Appeal’s decision, but it does not itself direct the trial court to
do anything. The opinion is “not the writ itself,” and it has “no
effect” until it becomes final as to the Court of Appeal and this
court. (Ng v. Superior Court (1992) 4 Cal.4th 29, 34.) “[I]t is
only when the decision becomes final as to both the Court of
Appeal and this court that the peremptory writ actually issues.”
(Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171,
181, italics omitted.) The trial court receives notice of the
requisite finality through the Court of Appeal’s issuance of the
remittitur. (See Advisory Com. com., Cal. Rules of Court,
rule 8.490(d) [“Under this rule, a remittitur serves as notice that
the writ proceedings have concluded”].) It is therefore finality

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
29
and the issuance of the remittitur that constitutes the
conclusion of the proceedings in the Court of Appeal and the
expiration of the temporary stay.
Similar to the temporary stay here, Code of Civil
Procedure section 916 provides for an automatic stay, where
applicable, of trial court proceedings in a civil appeal. Although
described as a stay, the automatic stay has far-reaching effects.
Under the statute, “ ‘the trial court is divested of’ subject matter
jurisdiction over any matter embraced in or affected by the
appeal during the pendency of that appeal. [Citation.] ‘The
effect of the appeal is to remove the subject matter of the order
from the jurisdiction of the lower court . . . .’ [Citation.] Thus,
‘that court is without power to proceed further as to any matter
embraced therein until the appeal is determined.’ ” (Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196–197,
fn. omitted (Varian Medical).) “In order to preserve the status
quo and return the parties to ‘the same condition they were
before the order was made’ [citation], [the statute] necessarily
renders any subsequent trial court proceedings on matters
‘embraced’ in or ‘affected’ by the appeal void — and not merely
voidable [citation]. A contrary conclusion would allow the trial
court to render an appeal futile.” (Id. at p. 198.)
Similar principles apply in many criminal appeals.8
(See People v. Murphy (1969) 70 Cal.2d 109, 116.) In general,
8 The notable exception is, of course, the absence of any
automatic stay of the execution of an order of probation or
criminal judgment, other than in cases where a sentence of
death has been imposed. Section 1243 provides, “An appeal to
the Supreme Court or to a court of appeal from a judgment of
conviction stays the execution of the judgment in all cases where

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
30
“an appeal from an order in a criminal case removes the subject
matter of that order from the jurisdiction of the trial court.”
(Anderson v. Superior Court (1967) 66 Cal.2d 863, 865;
see People v. Cunningham (2001) 25 Cal.4th 926, 1044;
see also Varian Medical, supra, 35 Cal.4th at pp. 197–198 &
fn. 9 [relying on criminal opinions to interpret the civil
automatic stay].) “Until the remittitur issues, the lower court
lacks jurisdiction over the subject matter of the order or
judgment on appeal. [Citation.] Thus, any order the lower court
makes affecting an order or judgment on appeal is null and void
if made before the remittitur issues.” (People v. Burhop (2021)
65 Cal.App.5th 808, 813 (Burhop).) It makes no difference if the
lower court purports to act in accordance with the appellate
court’s direction, e.g., the disposition of a filed opinion. Such an
act exceeds the trial court’s jurisdiction. “ ‘Until remittitur
issues, the lower court cannot act upon the reviewing court’s
decision; remittitur ensures in part that only one court has
jurisdiction over the case at any one time.’ ” (People v. Saunoa
(2006) 139 Cal.App.4th 870, 872 (Saunoa).) Thus, even where
an appellate opinion requires a retrial, “the trial court’s failure
to wait for remittitur before conducting the retrial renders all
proceedings conducted prior to retrial, and their results, null
and void.” (Ibid.; accord, People v. Sonoqui (1934) 1 Cal.2d 364,
365–366 (Sonoqui).)
a sentence of death has been imposed, but does not stay the
execution of the judgment or order granting probation in any
other case unless the trial or appellate court shall so order.”
Similarly, section 1242 provides, “An appeal taken by the people
in no case stays or affects the operation of a judgment in favor
of the defendant, until judgment is reversed.”

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
31
A temporary stay of all proceedings operates similarly to
deprive a trial court of jurisdiction. (See Tamborino v. Superior
Court (1986) 41 Cal.3d 919, 921, fn. 1.) The temporary stay —
like the automatic stay — is intended to preserve the status quo.
It ensures that the writ proceedings are not futile, and that any
relief granted by the appellate court is not frustrated by the
actions of a lower court. It preserves the jurisdiction of the
appellate court and displaces any conflicting jurisdiction of the
lower court. Even where a trial court acts in accordance with
the disposition of a filed opinion, the temporary stay preserves
the authority of the Court of Appeal (and this court) to revisit
any such disposition prior to finality. Moreover, the issuance of
a temporary stay reflects the appellate court’s determination
that such a step is warranted in the specific case at hand. Thus,
even more than an automatic stay, a temporary stay issued in a
specific case reflects its considered necessity. It should not be
given lesser effect.
The Court of Appeal here issued a temporary stay of all
proceedings in the trial court. Because the Court of Appeal’s
opinion was never final, its temporary stay never expired. The
trial court therefore violated the stay when it acceded to the
prosecution’s request to resume the criminal proceedings
against Mitchell. We therefore agree with the parties that the
trial court lacked jurisdiction to proceed, and its subsequent
actions are null and void. (See Sonoqui, supra, 1 Cal.2d at
pp. 365–366; Burhop, supra, 65 Cal.App.5th at p. 813; Saunoa,
supra, 139 Cal.App.4th at p. 872.) The proceedings remain at
the point when the Court of Appeal issued its temporary stay,
and this matter is not moot.
Because we hold that the trial court’s order was
potentially subject to review as an order in excess of jurisdiction,

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
32
but we decline to consider whether the Court of Appeal
reasonably granted writ relief in light of the unusual
circumstances here, the proper disposition is to affirm the
judgment of the Court of Appeal. When the Court of Appeal’s
opinion is final, and it issues its remittitur, the temporary stay
will expire and the criminal proceedings against Mitchell may
resume in the trial court.
Finally, we note that the district attorney recognized in
his briefing that Mitchell’s criminal prosecution “is now going
on its seventh year.” The district attorney writes that he “would
be open to this Court’s order, in the furtherance of justice and in
the interests of fairness, barring future litigation of the charges
against [Mitchell] contained in the March 2018 complaint.”
Mitchell “joins in inviting this Court to exercise its discretion
and dismiss the case under section 1385.” Beyond this bare
reference to section 1385, however, the parties have not
demonstrated that the statute empowers this court to order
dismissal in this context. The statute refers to the power of a
“judge or magistrate” to “order an action to be dismissed.”
(§ 1385, subd. (a).) Its application in the appellate context is not
apparent. (See Wheeler v. Appellate Division (2024) 15 Cal.5th
1193, 1205 [statute authorizes a “trial judge” to dismiss an
action].) Thus, while dismissal would appear to serve the
interests of justice in light of the district attorney’s position, the
history of this matter, and the disposition already accepted by
the parties, the district attorney’s suggestion should be
presented to the trial court in the first instance.

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PEOPLE v. SUPERIOR COURT (MITCHELL)
Opinion of the Court by Guerrero, C. J.
33
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.

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See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Superior Court (Mitchell)
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 94 Cal.App.5th 595
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S281950
Date Filed: December 12, 2024
__________________________________________________________
Court: Superior
County: Ventura
Judge: David R. Worley
__________________________________________________________
Counsel:
Erik Nasarenko, District Attorney, and Miriam R. Arichea, Deputy
District Attorney, for Petitioners.
No appearance for Respondent.
Claudia Y. Bautista, Public Defender, and William M. Quest, Deputy
Public Defender, for Real Party in Interest.

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Counsel who argued in Supreme Court (not intended for
publication with opinion):
Miriam R. Arichea
Deputy District Attorney
800 South Victoria Avenue, Suite 314
Ventura, CA 93009
(805) 654-3035
William M. Quest
Deputy Public Defender
789 South Victoria Avenue, Suite 307
Ventura, CA 93003
(805) 654-3032

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