IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 8, 2010
YASIN VERNON ALMALIK, PETITIONER,
THE SUPERIOR COURT OF SANTA CRUZ COUNTY, RESPONDENT, THE PEOPLE, REAL PARTY IN INTEREST.
(Santa Cruz County Super. Ct. No. F18130)
The opinion of the court was delivered by: Elia, J.
Almalik v. Super. Ct. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Petitioner Yasin Vernon Almalik seeks a writ of mandate to compel
respondent superior court to grant his application for a certificate
of probable cause in his pending criminal appeal (No. H035390).*fn1
After reviewing preliminary opposition and the appellate
record, we informed the parties we were considering issuing a
peremptory writ in the first instance. (Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171.) The People, real party in
interest, chose not to file further opposition. We conclude that
respondent superior court abused its discretion in denying
petitioner's application for a certificate of probable cause.
(Pen.Code, § 1237.5.)*fn2 Accordingly, we shall order the issuance
of a peremptory writ in the first instance.
Factual and Procedural Background
Petitioner pleaded no contest to one count of felony possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and admitted allegations under section 667.5, subdivision (b) (a prior prison term), Health and Safety Code section 11370 (prior narcotics convictions), and Health and Safety Code section 11370.2 (prior controlled substance convictions). In addition, he pleaded no contest to one count of misdemeanor resisting or obstructing an officer. (§ 148, subd. (a).)
The trial court imposed the mitigated term of three years on the felony possession count, plus one year for the section 667.5, subdivision (b) allegation, and struck punishment on the Health and Safety Code allegations. The court imposed a 180-day jail sentence for the misdemeanor resisting or obstructing an officer, to run concurrently with the prison sentence.
Petitioner filed a timely notice of appeal in pro per based on the denial of a motion to suppress under section 1538.5. Subsequently, appellate counsel filed an amended notice of appeal challenging the validity of petitioner's plea and requested a certificate of probable cause based on improper judicial plea bargaining, which induced petitioner to waive his right to a jury trial.
On May 7, 2010, the trial court denied the request for a certificate of probable cause stating that the court "did not make any 'offer' to Defendant for resolution of this case. Rather, this court indicated a sentence were Defendant to enter a plea to the charge and admit all allegations before trial. A court giving an indicated sentence is not prohibited plea bargaining. [Citation.]"
Review of a trial court's order denying an application for a certificate of probable cause is properly raised by a petition for writ of mandate in this court. (People v. Johnson (2009) 47 Cal.4th 668, 676; In re Brown (1973) 9 Cal.3d 679, 683.)
For reasons that follow, we conclude that respondent superior court erred in denying the application for a certificate of probable cause because the question of whether there was improper judicial plea bargaining is not a frivolous and vexatious argument.
Section 1237.5 limits appeals following guilty or no contest pleas to "reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings," if the defendant files the requisite statement showing such grounds and the trial court issues a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).) The purpose of this requirement is to preclude appeals that do not raise issues cognizable after a guilty plea or those which are clearly frivolous and vexatious. (In re Chavez (2003) 30 Cal.4th 643, 647; People v. Panizzon (1996) 13 Cal.4th 68, 75-76.) It is an abuse of discretion to refuse to issue a certificate of probable cause if a statement presents an issue that is not clearly frivolous and vexatious, even if the trial court believes the contention is not meritorious. (People v. Holland (1978) 23 Cal.3d 77, 84; People v. Ribero (1971) 4 Cal.3d 55, 63, fn. 4.)
During the January 2010 hearing at which petitioner decided to enter a plea, the court said that it had told the parties earlier that "upon entry of a plea to the charges in this case, the Court would sentence the defendant to the term of four years . . . which would be based on a mitigated term as to Count 1 in F18130, the 11351.5a Health & Safety Code charge enhanced by one year for the prior prison commitment under Penal Code Section 667.5. . . . The Court would be dismissing the other [allegation enhancements under the Health and Safety Code] in the interest of justice . . . ."
Thereafter, the court asked the prosecutor, "[W]hat is the People's position with respect to Count 2 [the misdemeanor]?" The prosecutor replied, "[M]y understating is that this is a plea to the Court." The court then said that it "will simply impose concurrent time on that charge obviously because it's a county jail sentence."
Petitioner told the court he "wanted to see if I can't wait until tomorrow" to decide whether to enter a plea. The court said that it would not be available the next day and asked petitioner, "Are you prepared to enter into the disposition in this case . . . ?" Petitioner replied, "I have to, I guess." The court said, "You don't have to. We can go ahead and proceed to trial tomorrow and see what happens at that time. When a jury decides your case and -- do you want a few more minutes to talk to [counsel]?" Petitioner replied, "No. I'm going to go ahead and do it. I was shooting for, like, three years, though."
Thereafter, the court explained how it had calculated the four year sentence, telling petitioner, "For the Court to grant a mitigated sentence and to strike the punishment on all of the allegations, I did consider the fact that you had an arrest in 2006; however, you did successfully complete [P]roposition 36. But you also did have the arrest from 2008 and you were presently on probation for the Prop 36 case in F16893 at the time that you committed this. . . . [T]he most significant factor in coming to the four years as opposed to five or six at this point is that there was an indication that you would like to resolve this case and there was a small amount involved. [¶] At the end of a trial if you are convicted of the charge, obviously anybody talked to you, the Court cannot make that guarantee; that is the Court's indication." Petitioner asked, "What if I take it to trial, though?" The court replied, "Well, once you take it to trial, then there are no guarantees. It becomes much more difficult once the Court hears the facts and circumstances even more. I mean, you're not someone who's new to the process. And you know that there are significant risks in running the trial. And the most significant risk that you face in going to trial is that the Court may not then strike the three year enhancement [for the Health and Safety Code allegations]. . . . So you could be looking at potentially six years if the court even imposed the mitigated term on the main charge, but the Court may not be as understanding to strike the punishment."
Petitioner argues that "[t]he trial court's statements to [him] constituted an inducement to accept the offered sentence or face possible greater punishment after a jury trial," and that the "issue petitioner raised in his request for the certificate of probable cause"--that his plea was involuntary because the court improperly induced it by bargaining with him directly and threatening him with a greater sentence if he did not waive his right to a jury trial--"is arguable."
Real party in interest argues that petitioner has not demonstrated that the trial court arbitrarily and capriciously denied him a certificate of probable cause. The judge that denied the certificate of probable cause presided over petitioner's change of plea hearing and made a finding that the change of pleas were freely and voluntary given.
" '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.]' [Citation.]" (People v. Hoffard (1995) 10 Cal.4th 1170, 1178.) "The trial court must issue a certificate. . . if the defendant's statement presents 'any cognizable issue for appeal which is not clearly frivolous and vexatious . . . .' [Citation.]" (Ibid.)
Here, we need only decide that the issue of whether the court engaged in unlawful judicial plea bargaining causing petitioner to waive his right to a jury trial is frivolous and vexatious. In our view, there appears to be an honest difference of opinion on this issue and thus it is not "clearly frivolous and vexatious." This is an issue which requires a certificate of probable cause (see, e.g., People v. Ribero, supra, 4 Cal.3d at p. 63, fn. 4) so that the issue can be decided on appeal.
We have determined that a peremptory writ of mandate in the first instance is appropriate in this case. 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 petitioner's 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.]' [Citation.]" (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1241, quoting Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1223.)
Before issuing a peremptory writ in the first instance, we must comply with certain procedural requirements. 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.)
We have complied with these requirements in the present case by providing notice that this court was considering issuance of a peremptory writ in the first instance and requesting points and authorities in opposition to the petition. No opposition was filed. Further, we conclude that a peremptory writ in the first instance is appropriate to correct the trial court's order expeditiously so that Almalik's criminal appeal may be heard on the merits. The applicable principles of law are well established, the relevant facts are undisputed, and petitioner's entitlement to relief is so obvious that plenary consideration of the issues is unwarranted. (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1241.) Accordingly, we grant the petition for writ of mandate in the first instance.
Let a peremptory writ of mandate issue directing the respondent superior court to vacate its postjudgment order of May 7, 2010, denying petitioner's request for a certificate of probable cause, and to issue a new and different order granting that request. This opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.490(b)(3).)
WE CONCUR: PREMO, Acting P.J. DUFFY, J.