Opinion
A154521
06-21-2018
JEFFREY ATKINS, Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 213752) THE COURT:
Before Jones, P.J., Needham, J. and Bruiniers, J.
Petitioner seeks a writ of mandate to compel respondent superior court to issue a certificate of probable cause under Penal Code section 1237.5. We conclude petitioner is entitled to the requested relief.
All further statutory references are to the Penal Code, unless otherwise noted.
We grant the petition by way of this memorandum opinion because "[t]he Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion." (Cal. Stds. Jud. Admin., § 8.1.) --------
Before a defendant may take an appeal from a judgment of conviction based upon a plea of guilty or nolo contendere, defendant must "fil[e] with the trial court a written statement, executed under oath or penalty of perjury[,] showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," and obtain from the trial court "a certificate of probable cause for such appeal. . . ." (§ 1237.5.)
In deciding whether to issue a certificate of probable cause, "[t]he trial court is empowered to review the statement of the grounds of the appeal to preclude those appeals which raise no issues cognizable after a guilty plea or which raise cognizable issues which are 'clearly frivolous and vexatious . . . .' [Citations.] [¶] It is not the trial court's responsibility to determine if there was an error in the proceedings. The trial court's sole objective is to eliminate those appeals 'having no possible legal basis' by refusing to issue a certificate of probable cause. [Citations.] Section 1237.5 requires the trial court to certify any arguably meritorious appeal to the appellate courts. Thus, if the statement submitted by the defendant in accordance with section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious, the trial court abuses its discretion if it fails to issue a certificate of probable cause. [Citations.]" (People v. Holland (1978) 23 Cal.3d 77, 83-84, disapproved on other grounds in People v. Mendez (Mendez) (1999) 19 Cal.4th 1084, 1097-1098 & fns. 7 & 9.) The propriety of a trial court's refusal to issue a certificate of probable cause is reviewable on mandamus. (In re Brown (1973) 9 Cal.3d 679, 683, disapproved on other grounds in Mendez, supra, 19 Cal.4th at p. 1097 & fn. 7; People v. Johnson (2009) 47 Cal.4th 668, 676.)
Here, in articulating grounds going to the legality of his guilty plea, petitioner's certificate request asserted the superior court had lost jurisdiction to proceed in his case under section 1203.2a, and explained several reasons for that conclusion. The record before us reveals that prior to his plea, petitioner had unsuccessfully litigated a motion pursuant to section 1203.2a.
The superior court summarily denied petitioner's request for a certificate of probable cause. In seeking relief from that denial, petitioner argues the superior court erred in refusing to grant the certificate, since his section 1203.2a claim raises cognizable issues about the legality of the proceedings which are not clearly frivolous or vexatious. The Attorney General's response to the petition agrees a certificate is required for petitioner to raise the section 1203.2a jurisdictional issue on appeal, and concedes that "in light of the threshold showing made by petitioner, we do not oppose the petition for writ of mandate." From our review of the petition, we agree.
In accordance with our notification to the parties that we might do so , we will direct issuance of a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) Petitioner's right to relief is obvious, and no useful purpose would be served by issuance of an alternative writ, further briefing, and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241; see also Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240-1244.)
Let a peremptory writ of mandate issue, commanding respondent to set aside and vacate its March 21, 2018 order denying petitioner's application for a certificate of probable cause, and enter a new and different order granting said application.
To prevent further delays, this opinion shall be final as to this court within five days of filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) A copy of this opinion shall be filed in the related appeal in case No. A153950. Should the parties so stipulate, the remittitur shall issue immediately. (Cal. Rules of Court, rules 8.272(c)(1), 8.490(d).)