Dutra

In a prior opinion we affirmed Sarah Elizabeth Dutra’s felony convictions. (People v. Dutra (May 18, 2005, C044075) [nonpub. opn.] (Dutra I).) Based on an explicit concession at oral argument by the Attorney General we gave the People the option of accepting a midterm sentence on manslaughter, or “a remand for a sentencing trial.” (Dutra I, *1362 supra, C044075.) The People did not accept the midterm sentence or petition for rehearing or review. The remittitur ordered a sentencing trial.

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

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

The trial court was bound not by law of the case but by the terms of our remittitur. A trial court may not disobey a remittitur, as that would amount to overruling the appellate court’s…

I respectfully dissent.

I agree the trial court erred in failing to follow the directive of our remittitur and to give defendant a sentencing trial.

I also agree that the doctrine of law of the case did not apply in the trial court. But it applies in this court. However, the doctrine is subject to an exception. Here, the controlling rule of law with respect to sentencing trials has been altered or clarified by a decision intervening between defendant Dutra’s first appeal and this one. (See People v. Stanley (1995) 10 Cal.4th 764, 787 [ 42 Cal.Rptr.2d 543 , 897 P.2d 481 ].) The new decision is People v. Black (2005) 35 Cal.4th 1238 [ 29 Cal.Rptr.3d 740 , 113 P.3d 534 ]. Under Black , defendant Dutra is not entitled to a sentencing trial. (Id. at p. 1244.)

The California Constitution commands that we may set aside a judgment “for any error as to any matter of procedure” only if we are of the opinion “that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)

*1370 There is no miscarriage of justice here. Under current law, defendant Dutra is not entitled to a sentencing trial. Indeed, the majority give her a procedural right not…

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

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

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

The trial court was bound not by law of the case but by the terms of our remittitur. A trial court may not disobey a remittitur, as that would amount to overruling the…