Rule 4.551 - Habeas corpus proceedings(a) Petition; form and court ruling(1) Except as provided in (2), the petition must be on the Petition for Writ of Habeas Corpus (form HC-001).(2) For good cause, a court may also accept for filing a petition that does not comply with (a)(1). A petition submitted by an attorney need not be on the Judicial Council form. However, a petition that is not on the Judicial Council form must comply with Penal Code section 1474 and must contain the pertinent information specified in the Petition for Writ of Habeas Corpus (form HC-001), including the information required regarding other petitions, motions, or applications filed in any court with respect to the conviction, commitment, or issue.(3) If a petition raises a claim under Penal Code section 745(a), the petition must include whether the petitioner requests appointment of counsel and whether the petitioner can afford counsel.(4) If a petitioner has an unadjudicated habeas corpus petition pending in the superior court, the petitioner may amend the existing petition with a claim the petitioner's conviction or sentence was in violation of Penal Code section 745(a).(5)(A) On filing, the clerk of the court must immediately deliver the petition to the presiding judge or their designee. The court must rule on a petition for writ of habeas corpus within 60 days after the petition is filed.(B) When an unadjudicated habeas corpus petition is amended to include a claim under section 745, or otherwise amended with leave of court, the time to rule on a petition for writ of habeas corpus is extended to 60 days from the date the amended petition was filed.(6) If the court fails to rule on the petition (or amended petition) within 60 days of its filing, the petitioner may file a notice and request for ruling.(A) The petitioner's notice and request for ruling must include a declaration stating the date on which any petition or amended petition was filed, the date of the notice and request for ruling, and the fact that the petitioner has not received a ruling on the petition. A copy of the original (and the amended) petition must be attached to the notice and request for ruling.(B) If the presiding judge or their designee determines that the notice is complete and the court has failed to rule, the presiding judge or their designee must assign the petition to a judge and calendar the matter for a decision without appearances within 30 days of the filing of the notice and request for ruling. If the judge assigned by the presiding judge rules on the petition before the date the petition is calendared for decision, the matter may be taken off calendar.(7) If a petition raises a claim under Penal Code section 745(a) that is based on conduct or statements by a judge, the judge must disqualify themselves from proceedings under section 745.(8) For the purposes of (a)(5), the court rules on the petition by: (A) Issuing an order to show cause under (c);(B) Denying the petition for writ of habeas corpus; or(C) Requesting an informal response to the petition for writ of habeas corpus under (b). (Subd (a) amended effective September 1, 2024; previously amended effective January 1, 2002, January 1, 2004, January 1, 2007, January 1, 2009, and January 22, 2019.)
(9) The court must issue an order to show cause or deny the petition within 45 days after receipt of an informal response requested under (b).(b) Informal response(1) Before passing on the petition, the court may request an informal response from: (A) The respondent or real party in interest; or(B) The custodian of any record pertaining to the petitioner's case, directing the custodian to produce the record or a certified copy to be filed with the clerk of the court.(2) A copy of the request must be sent to the petitioner. The informal response, if any, must be served on the petitioner by the party of whom the request is made. The informal response must be in writing and must be served and filed within 15 days. If any informal response is filed, the court must notify the petitioner that he or she may reply to the informal response within 15 days from the date of service of the response on the petitioner. If the informal response consists of records or copies of records, a copy of every record and document furnished to the court must be furnished to the petitioner.(3) After receiving an informal response, the court may not deny the petition until the petitioner has filed a timely reply to the informal response or the 15-day period provided for a reply under (b)(2) has expired.(c) Order to show cause(1) The court must issue an order to show cause if the petitioner has made a prima facie showing that the petitioner is entitled to relief. In doing so, the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if the petitioner's factual allegations were proved. If so, the court must issue an order to show cause.(2) An order to show cause is a determination that the petitioner has made a showing that they may be entitled to relief. It does not grant the relief sought in the petition. (Subd (c) amended effective September 1, 2024; adopted effective January 1, 2002.; previously amended effective January 1, 2007.)
(d)Appointment of counsel(1) On issuing an order to show cause, the court must appoint counsel for any unrepresented petitioner who desires but cannot afford counsel.(2) When a petition raises a claim under Penal Code section 745(a) and requests appointment of counsel, the court must appoint counsel if the petitioner cannot afford counsel and either the petition alleges facts that would establish a violation of section 745(a) or the State Public Defender requests that counsel be appointed. Newly appointed counsel may amend a petition filed before their appointment. (Subd (d) adopted effective September 1, 2024.)
(e) ReturnIf an order to show cause is issued as provided in (c), the respondent may, within 30 days thereafter, file a return. Any material allegation of the petition not controverted by the return is deemed admitted for purposes of the proceeding. The return must comply with Penal Code section 1480 and must be served on the petitioner.
(Subd (e) relettered effective September 1, 2024; repealed and adopted as subd (d) effective January 1, 2002; previously amended effective January 1, 2004.)
(f) DenialWithin 30 days after service and filing of a return, the petitioner may file a denial. Any material allegation of the return not denied is deemed admitted for purposes of the proceeding. Any denial must comply with Penal Code section 1484 and must be served on the respondent.
(Subd (f) relettered effective September 1, 2024; adopted as subd (b) effective January 1, 1982; previously amended and relettered as subd (e) effective January 1, 2002.)
(g) Evidentiary hearing; when required(1) Except as provided in (2), within 30 days after the filing of any denial or, if none is filed, after the expiration of the time for filing a denial, the court must either grant or deny the relief sought by the petition or order an evidentiary hearing. An evidentiary hearing is required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact. The petitioner must be produced at the evidentiary hearing unless the court, for good cause, directs otherwise.(2) If the court issues an order to show cause on a claim raised under Penal Code section 745(a), the court must hold an evidentiary hearing, unless the state declines to show cause. The defendant may appear remotely, and the court may conduct the hearing with remote technology, unless counsel indicates the defendant's presence in court is needed. (Subd (g) amended and relettered effective September 1, 2024; adopted as subd (c) effective January 1, 1982; previously amended and relettered as subd (f) effective January 1, 2002 )
(h) Reasons for denial of petition(1) Except as provided in (2), any order denying a petition for writ of habeas corpus must contain a brief statement of the reasons for the denial. An order only declaring the petition to be "denied" is insufficient.(2) If the court determines that the petitioner has not established a prima facie showing of entitlement to relief for a claim raised under Penal Code section 745(a), the court must state the factual and legal basis for its conclusion on the record or issue a written order detailing the factual and legal basis for its conclusion. (Subd (h) amended and relettered effective September 1, 2024; adopted as subd (e) effective January 1, 1982; previously amended and relettered as subd (g) effective January 1, 2002.)
(i) Extending or shortening timeOn motion of any party or on the court's own motion, for good cause stated in the order, the court may shorten or extend the time for doing any act under this rule. A copy of the order must be mailed to each party.
Subd (d) adopted effective 9/1/2024; Rule 4.551amended January 15, 2019, effective 1/22/2019; amended effective 1/1/2009; adopted as rule 260 effective 1/1/1982; previously renumbered as rule 4.500 effective 1/1/2001; previously amended and renumbered effective 1/1/2002; previously amended effective 1/1/2004, and1/1/2007. Advisory Committee Comment
The court must appoint counsel on the issuance of an order to show cause. (In re Clark (1993) 5 Cal.4th 750, 780 and People v. Shipman (1965) 62 Cal.2d 226, 231,232.) The Court of Appeal has held that under Penal Code section 987.2, counties bear the expense of appointed counsel in a habeas corpus proceeding challenging the underlying conviction. (Charlton v. Superior Court (1979) 93 Cal.App.3d 858, 862.) Penal Code section 987.2 authorizes appointment of the public defender, or private counsel if there is no public defender available, for indigents in criminal proceedings.
The issue of whether the prima facie showing for a petition for writ of habeas corpus under section 1473(e) is the same as in section 745(h)(2) or defined in subdivision (c)(1) of this rule (see In re Marquez (2007) 153 Cal.App.4th 1, 11) is unresolved.
Subdivision (a)(4) and (7). The committee's revisions reflect the language in section 1473(e) and are not intended to limit a court's discretion and authority in habeas corpus proceedings that do not include claims under section 745.