Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. CR81769
McINTYRE, J.
PROCEEDINGS in mandate after the superior court clerk refused to accept filing without prepayment of fee or fee waiver. Petition granted.
In 1986, Cynthia G. Simpson pleaded guilty to a felony, making a false statement to obtain aid, and was granted probation for five years. She has fulfilled the terms and conditions of her probation.
On July 24, 2007, the public defender attempted to file a petition to set aside Simpson's plea under Penal Code section 1203.4. (All further statutory references are to the Penal Code unless otherwise indicated.) The public defender had been in contact with superior court for two weeks before the attempted filing and had provided the court a copy of Lewis v. Clarke (2003) 108 Cal.App.4th 563, 570 [§ 1203.4, subd. (c) does not authorize court clerk to require prepayment of filing fee, and defendant cannot be compelled to apply for waiver of fee that court clerk is not authorized to collect]. The clerk nevertheless refused to accept or file the petition without advance payment of the $120 filing fee or the grant of an application to proceed in forma pauperis.
Simpson filed a writ petition on July 25, 2007, asserting the clerk has a mandatory duty to accept her section 1204.3 petition for filing without advance payment of a filing fee or approval of a fee waiver. We requested a response.
Superior court has not contested the application of Lewis. To the contrary, the court responded, stating it changed its procedure effective July 23, 2007, and no longer requires prepayment of the filing fee or the filing of an application for fee waiver. In reply, however, the public defender's office indicated it had attempted to file a section 1203.4 petition on August 6 (14 days after the effective date of the change) but the clerk would not accept it for filing without advance payment of the filing fee or the filing of an application for fee waiver.
We construe superior court's response as a concession. Because the relevant facts are not in dispute, the law is well settled, and superior court has not contested the issue, we conclude a peremptory writ in the first instance is proper. (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to accept for filing, without requiring prepayment payment of a filing fee or the filing of an application for fee waiver, any petition for relief under section 1203.4. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR: HALLER, Acting P. J., McDONALD, J.