Opinion
No. H033085
9-8-2008
STEPHEN FRIDAY, Petitioner, v. THE SUPERIOR COURT OF MONTEREY, Respondent, THE PEOPLE, Real Party in Interest.
Not to be Published
Petitioner Stephen Friday seeks a writ of mandate challenging respondent courts order denying his request for a certificate of probable cause. (Pen.Code, § 1237.5; Cal. Rules of Court, rule 8.304(b).) The People concede, and we agree, that the trial court abused its discretion by denying the application for a certificate of probable cause. We will therefore issue a peremptory writ of mandate granting petitioner the requested relief.
Background
On June 23, 2004, petitioner was charged by complaint with one count of battery by a prisoner, in violation of Penal Code section 4501.5, with a prior conviction (robbery with use of a firearm) within the meaning of the Three Strikes Law, Penal Code section 1170.12, subdivision (c)(1). On January 16, 2008, petitioner pleaded no contest to the battery and admitted the "strike" allegation.
At the change-of-plea hearing the court recited its understanding that petitioner was pleading no contest with the understanding that if the court dismissed the strike allegation, he would receive no more than two years in prison; and if the court did not dismiss the allegation, he would receive no more than four years. "Plus," the court added, "youre entitled to any credits." Petitioner sought clarification of the extent of his credits. Defense counsel told the court that she had advised petitioner that his credits "would include from the time he was released on parole, which was December 2005." The court explained, "Youre entitled to start earning credits from the day you begin your parole. Whatever day it was in December of 05, thats when we start calculating the credits from that day forward." After taking the plea, the court asked counsel to "both put your heads together, verify the actual and then the custody credits, and then just present that to me at the time of judg[ment] and sentencing." The prosecutor agreed to "verify" petitioners parole date and calculate the credits accordingly.
Later that day, the prosecutor informed defense counsel that according to prison records, petitioner had been released on parole on September 27, 2005, giving him credit of 854 actual days as of January 30, 2008. "Calculation as to good time/work time will depend on the outcome of the Romero motion as to whether it will be 4 days for 10 (2/5) or 80 %."
On January 30, 2008, defense counsel calculated petitioners credits to be 854 days plus either 170 days or 427 days, depending on which of the prosecutors two alternative measures of conduct credits were used. Thus, she suggested, petitioner was entitled to a total credit of 1,024 or 1,281 days.
On the same day, however, the district attorney filed a brief entitled "Calculation of Credits," which stated that petitioners credits did not begin accumulating until February 22, 2007. According to the sheriff of Monterey County, defendant had failed to appear in court for this case on March 8, 2006, leading to issuance of an arrest warrant on March 14, 2006. He was taken into custody in Los Angeles County on February 22, 2007 and released to Monterey County shortly thereafter. Consequently, the district attorney stated, petitioner "should receive credit from February 22, 2007, when he was in custody in Los Angeles and the Monterey County warrant was requested." Petitioners actual credits thus amounted to 313 days in 2007 and 107 days in 2008 (as of April 16), for a total of 420 days, not the 854 days represented to petitioner earlier. Adding in 210 good-time/work-time credits, the district attorney calculated a total credit of 630 days, not the 1,024 or 1,281 days calculated by defense counsel.
On March 3, 2008, petitioner moved to withdraw his plea on the ground that the court and prosecutor had led him to believe that he would receive presentence credit from the day he began his parole to the time of sentencing in this case. In opposition, the prosecutor maintained that the court had not misrepresented anything and that petitioners plea had been voluntary. The trial court found that there was no "involuntary entry of the plea [or] any misrepresentation." Referring back to the advisements given to petitioner at the plea hearing, the court stated, "I think the information [given to] the Defendant is accurate, that credits will start from the time that hes paroled, thats when they start being calculated from. But, the Court never indicated that it was particular in this case." The court proceeded to sentence petitioner to the lower term of two years, doubled under the Three Strikes law, with credit of 630 days.
Petitioner filed an appeal which is pending in this court (H032863). He requested a certificate of probable cause, but the trial court denied the application. In this petition for writ of mandate, petitioner contends that this ruling was an abuse of discretion.
Discussion
An appeal that challenges the validity of a guilty or no-contest plea may not be filed unless the defendant has filed a written statement with the trial court showing "reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings" and the trial court has issued a certificate of probable cause for the appeal. (Pen. Code, § 1237.5; California Rules of Court, rule 8.304(b).) The purpose of this limitation is "to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted." (People v. Buttram (2003) 30 Cal.4th 773, 790; People v. Cuevas (2008) 44 Cal.4th 374, 379.) Accordingly, the provisions governing certificates of probable cause must be applied strictly. (People v. Mendez (1999) 19 Cal.4th 1084, 1098.)
A trial court presented with an application for a certificate of probable cause must accede to that request if it presents an "arguably meritorious appeal." (People v. Holland (1978) 23 Cal.3d 77, 84.) "It is not the trial courts responsibility to determine [whether] there was an error in the proceedings. The trial courts sole objective is to eliminate those appeals `having no possible legal basis . . . . 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." (Ibid.)
Here petitioner contends that his plea was not voluntary and intelligent because he relied on the courts misadvisement that he would be credited with all the days accumulated since he was released on parole. Upon initial evaluation of this petition, this court requested a preliminary response from the People. The People agree with petitioner that petitioners contention is neither frivolous nor vexatious and is therefore a cognizable issue for appeal. They concede, therefore, that the trial court abused its discretion by refusing to issue a certificate of probable cause.
The Peoples concession is appropriate. Because the issue petitioner was attempting to raise was not clearly frivolous or vexatious, the certificate should have issued. We therefore conclude that writ relief is warranted. We further conclude that a peremptory writ in the first instance is appropriate to correct the trial courts error expeditiously.
In limited situations, an appellate court may issue a peremptory writ in the first instance, without issuance of an alternative writ or order to show cause, and without providing an opportunity for oral argument. (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1252-1253.) "A court may issue a peremptory writ in the first instance "`only when petitioners entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue—for example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts—or where there is an unusual urgency requiring acceleration of the normal process. . . ." [Citation.] " (Id. at p. 1241, quoting Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1223.)
However, Code of Civil Procedure section 1088 "`"requires, at a minimum, that a peremptory writ of mandate or prohibition not issue in the first instance unless the parties adversely affected by the writ have received notice, from the petitioner or from the court, that the issuance of such a writ in the first instance is being sought or considered. In addition, an appellate court, absent exceptional circumstances, should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected . . . ."" (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1240, quoting Alexander v. Superior Court, supra, 5 Cal.4th at pp. 1222-1223.)
While this court has not provided notice that a peremptory writ in the first instance might issue, the People, as the party "adversely affected," have filed a preliminary response to the petition indicating that they do not oppose the writ petition. Under these circumstances, notice is not necessary to protect the Peoples due process rights, and we have complied with all other procedural requirements for issuance of the writ in the first instance. Accordingly, we grant the petition for writ of mandate in the first instance.
Disposition
Let a peremptory writ of mandate issue directing the respondent superior court to vacate its order of May 5, 2008, denying petitioners application for certificate of probable cause. Respondent shall issue a new order granting the application. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR:
PREMO, Acting P.J.
DUFFY, J.