(Santa Cruz County Super.Ct.No. W43101). Trial Judge: Hon. Jeff Almquist.
The opinion of the court was delivered by: Duffy, J.
CERTIFIED FOR PUBLICATION
Justin S. Drake, the petitioner herein, is the appellant in a related case following a criminal conviction. In this case, he petitions for a peremptory writ of mandate ordering the superior court, the respondent herein, to issue a certificate of probable cause for his appeal. We will issue a peremptory writ in the first instance directing respondent court to vacate its order denying petitioner‟s application for a certificate of probable cause. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241.) The remedy we provide, however, is limited: the superior court (hereafter referred to as the trial court) is not required to grant petitioner‟s application for a certificate of probable cause, but need only consider his application on the merits or on procedural grounds other than untimeliness, the ground on which the court originally denied the certificate request.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner was convicted on July 18, 2008, after pleading no contest to one count of grand theft of a firearm (Pen. Code, § 487, subd. (d)(2)). A plea of this type must be "voluntary and intelligent under the totality of the circumstances." (People v. Marlow (2004) 34 Cal.4th 131, 147 [speaking of a guilty plea].) On August 27, 2008, petitioner moved to withdraw his plea on the ground that because of mental and physical infirmities when he entered it he did not do so voluntarily and intelligently.
The motion was supported by various medical records and included petitioner‟s declaration of August 27, 2008, that he believed he could receive urgently and vitally needed medical treatment only by pleading no contest and, he hoped, being taken from the custody of jail authorities forthwith.
On September 4, 2008, the trial court denied the motion and sentenced petitioner to 180 days in jail and three years of formal probation. The opening brief in petitioner‟s direct appeal, People v. Drake (H033331, app. pending), awaits our disposition of this writ petition.
On September 11, 2008, petitioner filed notice of appeal but expressly stated that he did not seek a certificate of probable cause because none was needed. Eight days later, on September 19, he changed course and filed an application for certificate of probable cause that included a declaration from his attorney stating grounds for appeal, as required by Penal Code section 1237.5, based on the trial court‟s having denied petitioner‟s motion to withdraw his plea. On September 29, the trial court denied petitioner‟s request for certificate of probable cause and handwrote on the order: "Not timely. See Cal. Rules of Court 8.304(b)(1)."
In our view, petitioner‟s request was timely filed and the trial court‟s order finding to the contrary was erroneous.
Although the matter is not free from doubt, it appears that California Rules of Court, rule 8.304(b)(1)*fn1 sets forth what is to be included in a criminal defendant‟s filings in these circumstances, not when the materials are to be filed. The rule states in relevant part that "to appeal from a superior court judgment after a plea of guilty or nolo contendere . . . , the defendant must file in that superior court-with the notice of appeal required by [another provision]-the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause." To be sure, the language of rule 8.304(b)(1) is not ideally clear on the point.
By contrast, rule 8.308, which is headed "TIME TO APPEAL," expressly sets forth time limits regarding appeals in criminal cases. Rule 8.308(a) gives criminal defendants 60 days "after the rendition of the judgment or the making of the order being appealed" to file "a notice of appeal and any statement required by Penal Code section 1237.5." The rule does not require that these two items be filed together, only that they both be filed within 60 days.
The foregoing rules do not address an unusual case like this, in which the defendant first files a noncertificate notice of appeal and then changes his mind and seeks a certificate of probable cause. The Supreme Court noted that the issue might arise someday (People v. Mendez (1999) 19 Cal.4th 1084, 1102, fn. 11) but declined ...