K.N. v. Superior Court

Filed 11/27/19 K.N. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
K.N.,
Petitioner,
v.
THE SUPERIOR COURT OF KERN
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
F079208
(Kern Super. Ct. No. JW107389-05)
OPINION
APPEAL from an order of the Superior Court of Kern County. Lorna H.
Brumfield, Judge.
Richard R. Rivera for Defendant and Appellant.
No appearance for Respondent.
Cynthia Zimmer, District Attorney, David L. Wilson and Terrance C. McMahan,
Deputy District Attorneys, for Real Party in Interest.
-ooOoo-
SEE CONCURRING AND DISSENTING OPINION

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On May 6, 2019, petitioner filed a “Petition for Extraordinary Writ,” challenging
the superior court’s March 27, 2019, ruling finding Senate Bill No. 1391 (2017-2018
Reg. Sess.) (Sen. Bill No. 1391) unconstitutional, denying her motion to dismiss the
juvenile court transfer motion, and setting the matter for a transfer hearing, pursuant to
this court’s May 2, 2018, nonpublished decision on remand in case No. F066160 (People
v. Nash et al. (May 2, 2018, F066160) [nonpub. opn.]). This court immediately deemed
the petition a “Petition for Writ of Mandate,” stayed further proceedings, and ordered
informal responses.
This court subsequently upheld Sen. Bill No. 1391 as constitutional and found that
under the legislation, the juvenile court now lacks authority to transfer minors aged 14
and 15 to criminal court. (People v. Superior Court (T.D.) (2019) 38 Cal.App.5th 360,
review granted Nov. 26, 2019, S257980 (T.D.); People v. Superior Court (I.R.) (2019) 38
Cal.App.5th 383, review granted Nov. 26, 2019, S257773 (I.R.); see also People v.
Superior Court (Alexander C.) (2019) 34 Cal.App.5th 994 (Alexander C.); People v.
Superior Court (K.L.) (2019) 36 Cal.App.5th 529 (K.L.).)
On September 20, 2019, after the above referenced decisions became final, this
court lifted the stay of further proceedings and issued an alternative writ directing the
superior court to either:
“(a) Vacate its March 27, 2019, rulings (1) finding [Sen. Bill No.] 1391
unconstitutional, (2) denying the motion to dismiss the District
Attorney’s juvenile court transfer motion, and (3) setting a juvenile
transfer hearing, or
“(b) Show cause before this court why the requested relief should not
issue.”
This court expressly directed respondent court to inform this court of its decision
by October 15, 2019.
On October 15, 2019, respondent court filed a “Request for Extension of Time re:
Decision to Vacate its March 27, 2019 Ruling or Show Cause Before the Court.” The

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request, signed by the juvenile court officer who issued the rulings challenged by
petitioner, expressly sought “a two-week extension of the time for this court to inform the
5th District Court of Appeals [sic] of its decision.” The Presiding Justice of this court
granted the request for extension of time to respond through October 29, 2019.
Despite the request for extension of time, respondent court failed to timely comply
with the express terms of the alternative writ by either performing the requested action or
showing cause before this court why the requested relief should not issue. Indeed,
respondent court declined to respond at all to the alternative writ, other than to send word
through court staff that no response was forthcoming.
As of November 4, 2019, this court remained unaware of: (1) respondent court’s
intentions, (2) whether petitioner’s case remained pending before the juvenile court or
adult court, and (3) whether petitioner was in custody in juvenile hall, county jail, or
prison. This court therefore directed respondent court, petitioner, and the People to each
file concurrent responses with this court, no later than 4:30 p.m. on Tuesday,
November 12, 2019, setting forth the status of petitioner’s case and recommending
whether further action was required to resolve the issues raised in the petition. This court
subsequently granted requests from the People and petitioner for extensions of time
through November 18, 2019, and November 22, 2019, respectively. This court also
advised the parties it was considering granting relief without further proceedings. (Palma
v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
The People timely responded and set forth the procedural history of this case, but
did not mention the status of petitioner’s case or custody. The People argued that
because the constitutionality of Sen. Bill No. 1391 is now in conflict among the appellate
districts (see O.G. v. Superior Court (2019) 40 Cal.App.5th 626, review granted Nov. 26,
2019, S259011 (O.G.)), that this court should stay the proceedings below “until final
disposition of the matter by the California Supreme Court.”

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Petitioner, meanwhile, “objects to Real Party’s request that the orders contained in
this court’s alternative writ be held in abeyance pending some future ruling by the
California Supreme Court in another case from another appellate district.” She “contends
that she is being prejudiced by the delay in adjudicating her juvenile court delinquency
petition and obtaining the rehabilitative programs available” for juvenile offenders.
Petitioner protests that she is still imprisoned at the Central California Women’s Facility,
despite this court previously conditionally reversing her murder conviction in case
No. F066160. Petitioner renews her request that this court order respondent court to
vacate its March 27, 2019, rulings and further asks this court to order respondent court to
set a dispositional hearing in her underlying juvenile court action.
Meanwhile, on November 8, 2019, respondent filed with this court a “response,”
signed by the juvenile court officer, stating in its entirety:
“The Respondent Court has read the Order from the Court of Appeal
dated November 4, 2019. The Respondent Court will not be filing a
response to the ruling on the Petitioner’s “Petition for Extraordinary Writ”
that the Court of Appeal deemed a Petition for Writ of Mandate.”
Code of Civil Procedure section 1085, subdivision (a) establishes that “A writ of
mandate may be issued by any court to an inferior tribunal ….” Under Code of Civil
Procedure section 1087, such relief may be in the form of an alternative writ, which
“must command the party to whom it is directed immediately after the receipt of the writ,
or at some other specific time, 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 he has
not done so.”
This court issued an alternative writ on September 20, 2019, and effectively
reissued it on November 4, 2019, yet twice respondent court affirmatively elected not to
comply. Respondent court therefore not only violated the procedures under Code of Civil
Procedure section 1087, but also violated two direct orders issued by this court. (See
Hampton v. Superior Court (1952) 38 Cal.2d 652, 656 [“A trial court may not exceed the

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specific directions of a court of review … and add thereto conditions which it assumes
the reviewing court should have included.”]; Butler v. Superior Court (2002) 104
Cal.App.4th 979, 982 [“When an appellate court’s reversal is accompanied by directions
requiring specific proceedings on remand, those directions are binding on the trial court
and must be followed.”].)
In light of respondent court’s failure to comply with the alternative writ and for the
reasons set forth in T.D., supra, 38 Cal.App.5th 360, I.R., supra, 38 Cal.App.5th 383,
Alexander C., supra, 34 Cal.App.5th 994, and K.L., supra, 36 Cal.App.5th 529
demonstrating petitioner is entitled to appropriate relief, the May 6, 2019, Petition for
Writ of Extraordinary Relief, which this court deemed a Petition for Writ of Mandate, is
granted.1
DISPOSITION
Let a peremptory writ of mandate issue directing the Kern County Superior Court
to vacate its March 27, 2019, rulings and to set a dispositional hearing in petitioner’s
underlying juvenile court action. Respondent court is further ordered to cause a copy of
petitioner’s juvenile court disposition to be filed with this court within five days of the
dispositional hearing.
Given the respondent court’s obligation and failure to adhere to Code of Civil
Procedure section 1087 and appellate directions, a copy of this decision shall be
forwarded to the Presiding Judge of the Kern County Superior Court.
________________________
DETJEN, J.
I CONCUR:
__________________________
PEÑA, J.
1 While we acknowledge the Supreme Court recently granted review in T.D., I.R. and O.G.,
it did not order them depublished. (See Cal. Rules of Court, rule 8.1115(e)(1).)

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Poochigian, Acting P.J., concurring and dissenting.
For the reasons stated in my dissents in People v. Superior Court (T.D.) (2019) 38
Cal.App.5th 360, review granted Nov. 26, 2019, S257980 and People v. Superior Court
(I.R.) (2019) 38 Cal.App.5th 383, review granted Nov. 26, 2019, S257773, I disagree
with my colleagues that Sen. Bill No. 1391 is constitutional and that petitioner must be
adjudged by the juvenile court. If the respondent court had relied on opinions of other
appellate districts finding Sen. Bill No. 1391 unconstitutional, it should have so advised
this court. I therefore join the panel in concluding respondent court failed to adhere to its
duty to follow appellate orders of this court.
__________________________
POOCHIGIAN, Acting P.J.

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