(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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...