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B309895

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION SIX

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintifir and Appellant,
V.
ROBERT ANTHONY LASTRA, J R., ET AL.,
Defendants and Respondents.

San Luis Obispo County Superior Court, Case No. 20F-06361

The Honorable Matthew G. Guerrero, Judge

PETITION FOR REHEARING

XAVIER BECERRA (SBN 1 18517)

Attorney General of California
Mam“ 16- 2°21
LANCE E. WINTERS (SBN 1623 57)
JUdge Guerrero ChiefAssistant Attorney General
W
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3/ 1 7/2021 SUSAN SULLIVAN PITHEY (SBN 180166)

ReVieW/Datel'nitia'
Attorneys for Appellant
Senior Assistant Attorney General
ZEE RODRIGUEZ (SBN 2043 57)
Supervising Deputy Attorney General
WILLIAM N. FRANK (SBN 254941)
Deputy Attorney General
CHARLES S. LEE (SBN 268057)
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6068
Fax: (916) 731-2122
Charles.Lee@doi .ca.,<zov
DocketingLAAWT@d0j .ca. gov

March 16, 2021

 TABLE OF CONTENTS

Page

Introduction ......................................................................................5
Argument..........................................................................................7
Defendant Lastra is properly before this court under Penal
Code Section 1424, subdivision (a)(2) .............................................7
Conclusion ......................................................................................12

2
 TABLE OF AUTHORITIES

Page

CASES

Hambarian v. Superior Court

(2002) 27 Cal.4th 826 .................................................................10

Los Angeles Police Protective League v. City of Los

Angeles
(1994) 27 Cal.App.4th 168 ...........................................................8

People v. Hernandez
(1991) 235 Cal.App.3d 674 ........................................................10

People v. Jenan
(2006) 140 Cal.App.4th 782 .......................................................10

People v. Merritt
(1993) 19 Cal.App.4th 1573 .......................................................10

People v. Nickerson
(2005) 128 Cal.App.4th 33 ...........................................................8

People v. Superior Court (Humberto S.)

(2008) 43 Cal.4th 737 .................................................................10

People v. Trevino
(2001) 26 Cal.4th 237 .................................................................19

STATUTES

Gov. Code, § 68081 ............................................................................6

Pen. Code, § 17, subd. (a) ..................................................................7

Pen. Code, § 17, subd. (b) ..............................................................7, 9

Pen. Code, § 236 ................................................................................7

Pen. Code, § 594, subd. (b)(1) .....................................................7, 11

Pen. Code, § 691 ............................................................................5, 8

3
 TABLE OF AUTHORITIES
(continued)
Page

Pen. Code, § 691, subd. (f) ............................................................8, 9

Pen. Code, § 859a ..............................................................................8

Pen Code, § 1235 ...............................................................................7

Pen. Code, § 1235, subd. (b) ..............................................................7

Pen. Code, § 1235, subd. (b)(2) .......................................................11

Pen. Code, § 1424, subd. (a)(2) ...............................................passim

COURT RULES

Cal. Rules of Court, Rule 8.264(b)(1) ...............................................6

Cal. Rules of Court, Rule 8.268 ........................................................5

Cal. Rules of Court, Rule 8.304(a)(2) ...............................................8

Cal. Rules of Court, Rule 8.1002 ......................................................6

Cal. Rules of Court 8.366(b)(1) .....................................................5, 6

Cal. Rules of Court 8.1018(a) ...........................................................6

4
 INTRODUCTION
On March 11, 2021, this Court sua sponte issued an order
transferring the appeal involving Defendant Robert Anthony
Lastra, Jr., to the Appellate Division of the San Luis Obispo
County Superior Court. This Court reasoned that transfer was
appropriate because while Defendant Lastra had been charged in
a complaint with felony vandalism, he had not been charged with
a felony within the meaning of Penal Code section 691.1 (Mar.
11, 2021, Order 1-2.) However, appellant did not have an
opportunity to address whether Defendant Lastra was properly
before this Court because that question was raised for the first
time by Defendant Lastra in his response to appellant’s letter
brief. Appellant’s letter brief addressed the inquiries set forth in
this Court’s February 19, 2021, order, which asked only whether
Defendants Samuel Jeffrey Grocott and Jerad Dylan Hill were
properly before the Court and did not provide appellant an
opportunity to reply to any responses by the defendants. (See
Feb. 19. 2021, Order 1-2; Appellant’s Letter Brief 3-7.)
Appellant respectfully asks for rehearing so that this Court
may consider appellant’s position on whether Defendant Lastra is
properly before this Court. (Cal. Rules of Court, rule 8.268
[reviewing court may order rehearing on any decision that is not
final in that court on filing]; see rule 8.366(b)(1) [a Court of

1All further statutory references are to the Penal Code

unless otherwise specified.

5
Appeal decision is final 30 days after filing]; Advisory Committee
comment to rule 8.366(b)(1) [“decision” includes all interlocutory
orders by the Court of Appeal]; see also Gov. Code, § 68081
[“Before . . . a court of appeal . . . renders a decision in a
proceeding . . . based upon an issue which was not proposed or
briefed by any party to the proceeding, the court shall afford the
parties an opportunity to present their views on the matter
through supplemental briefing . . . [i]f the court fails to afford
that opportunity, a rehearing shall be ordered upon timely
petition of any party”].)2 As discussed below, because the instant
appeal challenges an order recusing the San Luis Obispo County
District Attorney’s Office, Defendant Lastra is properly before
this Court under section 1424, subdivision (a)(2).3

2 Rule 8.1018(a) states that a Court of Appeal order

denying the transfer of a case from the appellate division of the
superior court or a party’s petition to transfer the case is final
immediately, and a clerk must promptly issue a remittitur. That
rule does not apply here because this Court’s March 11, 2021,
order does not involve the denial of transfer or the denial of a
petition to transfer. Nor has a remittitur issued. Therefore, the
order is not final until April 10, 2021. (Cal. Rules of Court, rule
8.264(b)(1).)
3 This Court also transferred the appeals involving
Defendants Grocott and Hill to the Appellate Division of the San
Luis Obispo County Superior Court. Appellant does not request
rehearing as to Defendants Grocott and Hill. But if this Court
determines that Defendant Lastra should remain in the Court of
Appeal, appellant respectfully requests that this Court exercise
its discretion under California Rules of Court, rule 8.1002, to
transfer Defendants Grocott and Hill as well as the defendants in
a related case, People v. Aratawentworth et. al., San Luis Obispo
(continued…)

6
 ARGUMENT
DEFENDANT LASTRA IS PROPERLY BEFORE THIS COURT UNDER
PENAL CODE SECTION 1424, SUBDIVISION (A)(2)
Section 1424, subdivision (a)(2), provides in relevant part
that “[a]n appeal from an order of recusal or from a case involving
a charge punishable as a felony shall be made pursuant to
Chapter 1 (commencing with Section 1235) of Title 9, regardless
of the court in which the order is made.” (Emphasis added.) Part
2, Title 9, Chapter 1 of the Penal Code relates to felony appeals.
(See § 1235, et. seq.) Felony appeals must be made to the Court
of Appeal. (See § 1235, subd. (b).)
Here, as this Court judicially noticed in its February 19,
2021, and March 11, 2021, orders, Defendant Lastra was charged
in a complaint with felony vandalism (§ 594, subd. (b)(1)) and
misdemeanor false imprisonment (§ 236). (Feb. 19, 2021, Order
1; Mar. 11, 2021, Order 1.) Vandalism under section 594,
subdivision (b)(1), is a charge that is punishable as a felony. (§
594, subd. (b)(1), citing § 1170, subd. (h); see § 17, subd. (a)). The
vandalism charge against Defendant Lastra has not been reduced
to a misdemeanor under section 17, subdivision (b). Therefore,
under the plain language of section 1424, subdivision (a)(2), the
appeal of the recusal order as to Defendant Lastra arises both
“from an order granting recusal” and “from a case involving a

(…continued)
Superior Court Case No. 20M-05512AP, to the Court of Appeal to
secure uniformity of decision.

7
charge punishable as a felony” (emphasis added) and must be
made to this Court.
Relying on People v. Nickerson (2005) 128 Cal.App.4th 33,
this Court concluded that the case against Defendant Lastra was
not a felony case because Lastra had not been charged with a
felony within the meaning of section 691. (Mar. 11, 2021, Order
1.) Section 691, subdivision (f), defines a felony case as “a
criminal action in which a felony is charged.” And Nickerson held
that a felony is charged under section 691 when “an information
or indictment is filed or a complaint is certified to the superior
court pursuant to section 859a.” (Nickerson, supra, 128
Cal.App.4th at p. 38; see also Cal. Rules of Court, rule
8.304(a)(2).)
But the instant case is not governed by section 691,
subdivision (f); it is governed by section 1424, subdivision (a)(2),
which specifically applies to “[a]n appeal from an order of
recusal.” (See Los Angeles Police Protective League v. City of Los
Angeles (1994) 27 Cal.App.4th 168, 178-179 [it is axiomatic that
as a principle of statutory construction, “a particular or specific
provision will prevail over one which is more general”].) Unlike
section 691, subdivision (f), a felony appeal under section 1424,
subdivision (a)(2), is not limited to “a criminal action in which a
felony is charged.” (See § 691, subd. (f); see Cal. Rules of Court,
rule 8.304(a)(2).) Rather, section 1424, subdivision (a)(2),
expressly requires a felony appeal in a “case involving a charge
punishable as a felony.” (Emphasis added.)

8
 “When the Legislature uses materially different language in
statutory provisions addressing the same subject or related
subjects, the normal inference is that the Legislature intended a
difference in meaning.” (People v. Trevino (2001) 26 Cal.4th 237,
242.) The material difference in statutory language here is that
section 691, subdivision (f), is limited to cases in which a felony
has actually been charged—i.e., after an information, indictment,
or certified complaint has been filed—while section 1424,
subdivision (a)(2), applies more broadly to any case involving a
charge punishable as a felony, regardless of whether an
information, indictment, or certified complaint was filed. The
phrase “charge punishable as a felony” also implicitly references
section 17, subdivision (b), which discusses crimes that are
punishable as either felonies or misdemeanors. (Compare § 1424,
subd. (a)(2) with § 17, subd. (b).) The logical interpretation of
section 1424, subdivision (a)(2), then, is that an appeal of a
recusal order is a felony appeal so long as the case contains a
charge punishable as a felony, even if the charge is also
potentially punishable as a misdemeanor.
This difference in language between sections 691,
subdivision (f), and 1424, subdivision (a)(2) is not academic.
Indeed, ignoring the distinction would lead to absurd results. If
section 691, subdivision (f), were to govern recusal appeals, then
every case in which a district attorney’s office is recused before an
information, indictment, or certified complaint is filed would be
deemed a misdemeanor for appellate purposes, up to and
including special circumstance murder cases. Section 1424,

9
subdivision (a)(2), guards against this result by specifying that an
appeal of a recusal order is a felony for appellate purposes if it
involves a charge that is punishable as a felony.
Thus, by its plain language, and under well-established
rules of statutory construction, section 1424, subdivision (a)(2),
requires a felony appeal in any case that involves a charge that is
punishable as a felony, regardless of whether an information,
indictment, or certified complaint has been filed. The California
Supreme Court and the Courts of Appeal have implicitly agreed
with this interpretation of section 1424, subdivision (a)(2), by
routinely retaining and deciding appeals of recusal orders that
were issued prior to an information, indictment, or certified
complaint. (See, e.g., People v. Hernandez (1991) 235 Cal.App.3d
674 [defendant charged by complaint with offense punishable as
either felony or misdemeanor, and recusal order was appealed to
Court of Appeal prior to preliminary hearing]; People v. Jenan
(2006) 140 Cal.App.4th 782 [same]; see also People v. Superior
Court (Humberto S.) (2008) 43 Cal.4th 737, 745 [writ petition
filed in Court of Appeal challenging recusal order issued prior to
preliminary hearing in case involving felony charge]; Hambarian
v. Superior Court (2002) 27 Cal.4th 826, 832 [preliminary hearing
stayed pending appeal of recusal order in case involving charges
punishable as felonies]; People v. Merritt (1993) 19 Cal.App.4th
1573, 1576-1577 [appeal of recusal order issued prior to
preliminary hearing in case involving charges punishable as
felonies].) Appellant is unaware of, and Defendant Lastra has

10
not cited, any cases in which a Court of Appeal reached the
opposite conclusion.
The case against Defendant Lastra involves a charge that is
punishable as a felony. (§ 594, subd. (b)(1).) Therefore,
Defendant Lastra is properly before this Court on Appeal. (§§
1235, subd. (b)(2) & 1424, subd. (a)(2).)
///
///
///
///
///

11
 CONCLUSION
Rehearing should be granted so that the Court may consider
appellant’s position that Defendant Lastra is properly before this
Court under section 1424, subdivision (a)(2).

Respectfully submitted,

XAVIER BECERRA
Attorney General of California
LANCE E. WINTERS
Chief Assistant Attorney General
SUSAN SULLIVAN PITHEY
Senior Assistant Attorney General
ZEE RODRIGUEZ
Supervising Deputy Attorney General
WILLIAM N. FRANK
Deputy Attorney General

/s/ CHARLES S. LEE

CHARLES S. LEE
Deputy Attorney General
Attorneys for Appellant

March 16, 2021

12
 CERTIFICATE OF COMPLIANCE

I certify that the attached PETITION FOR REHEARING

uses a 13 point Century Schoolbook font and contains 1,828
words.

XAVIER BECERRA
Attorney General of California

/S/CHARLES S. LEE

CHARLES S. LEE
Deputy Attorney General
Attorneys for Appellant
March 16, 2021
LA2021600632
64057432.doc

13
 DECLARATION OF ELECTRONIC SERVICE

Case Name: People v. Lastra, et al

Case No.: B309895

I declare:

I am employed in the Office of the Attorney General, which is the office of a member
of the California State Bar, at which member's direction this service is made. I am
18 years of age or older and not a party to this matter. I am familiar with the
business practice at the Office of the Attorney General for collecting and processing
electronic and physical correspondence. In accordance with that practice,
correspondence placed in the internal mail collection system at the Office of the
Attorney General is deposited with the United States Postal Service with postage
thereon fully prepaid that same day in the ordinary course of business.
Correspondence that is submitted electronically is transmitted using the TrueFiling
electronic filing system. Participants who are registered with TrueFiling will be
served electronically. Participants in this case who are not registered with
TrueFiling will receive hard copies of said correspondence through the mail via the
United States Postal Service or a commercial carrier.

On March 16, 2021, I electronically served the attached PETITION FOR

REHEARING by transmitting a true copy via this Court’s TrueFiling system.
Because one or more of the participants in this case have not registered with the
Court’s TrueFiling system or are unable to receive electronic correspondence, I
served via E-Mail.

Brian A. Ford, Esq. San Luis Obispo Superior Court

(Served via TrueFiling)
Tyler R. Smith, Esq.
(Served via TrueFiling)
Vincent Barrientos, Esq,
(Served via TrueFiling)
California Appellate Project (CAP)
(Served by E-mail)
Courtesy Copy Served via E-Mail:
SLO-APPEALScourt@slo.courts.ca.gov
Delaney Henretty
Deputy District Attorney
San Luis Obispo County
District Attorney's Office
(Served via TrueFiling)
I declare under penalty of perjury under the laws of the State of California and the
United States of America the foregoing is true and correct and that this declaration
was executed on March 16, 2021, at Los Angeles, California.

Vanida S. Sutthiphong /s/ Vanida S. Sutthiphong

Declarant Signature

LA2021600632
64055566.docx