Filed 6/4/20 Johnson v. Superior Court CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ROBERT LEE JOHNSON,

Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

B303566

(Los Angeles County

Super. Ct. Nos.

KA118186, KA120125 )

ORIGINAL PROCEEDINGS in mandate. Petition for Writ of Mandate. Robert M. Martinez, Judge. Petition granted.

Lori A. Quick, for Petitioner.

No appearance for Respondent.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Kathy S. Pomerantz, Deputy Attorneys General, for Real Party in Interest.

_____________________________________________

Petitioner Robert Lee Johnson filed this petition for writ of mandate challenging the superior court’s denial of his request for a certificate of probable cause to appeal. The superior court (trial court) based the denial on a mistaken belief that petitioner’s motion to withdraw his plea had been adjudicated by another judge when it had not been. Because the trial court failed to analyze the merits of petitioner’s motion — which included an allegation that his counsel was ineffective — we issued a notice of intent to issue a peremptory writ in the first instance as to whether the trial court abused its discretion in denying petitioner’s application for a certificate of probable cause. In its preliminary opposition on behalf of real party in interest, the Attorney General, while conceding that petitioner appeared entitled to relief, opposed the petition on timeliness grounds. Because the petition is timely and petitioner’s application for a certificate of probable cause raised a cognizable issue for appeal that is not clearly frivolous and vexatious, we issue a peremptory writ directing respondent court to vacate its order denying petitioner’s application for a certificate of probable cause and enter a new order granting it.

FACTS

The material facts are undisputed. On May 24, 2018, the Los Angeles County District Attorney (District Attorney) filed an information in superior court case No. KA118186 charging one count of bringing contraband into jail (Pen. Code, § 4573, subd. (a)) (first case). It was also alleged that petitioner had one prior strike (Pen. Code, § 667, subds. (b)-(j), §1170.12) and seven prison prior terms (Pen. Code, § 667.5, subd. (b)). Because of his prior strike, the District Attorney alleged that petitioner was ineligible for probation and his sentence must be served in state prison. More than eight months later, the District Attorney filed another information in superior court, case No. KA120125, charging petitioner with possession of cocaine base for sale (Health & Saf. Code, § 11351.5) (second case). As in the first case, it was alleged that he had one strike prior and seven prison priors making him ineligible for probation.

On February 25, 2019, the District Attorney moved to amend the first case to add another count, a violation of Penal Code section 4527.8. The same day, through counsel, petitioner pled nolo contendere to the amended violation of Penal Code section 4527.8 in the first case and to the Health and Safety Code section 11351.5 violation in the second case. Petitioner also admitted a prior strike and the seven prior prison allegations. According to the plea bargain, petitioner was to be sentenced to serve 32 months in state prison as to the first case and a consecutive term of two years in the second case.

Less than a week later, petitioner filed in propria persona a motion to withdraw his plea. Petitioner claimed that, on the day he entered his plea, he informed his defense attorney that there was a conflict in the first case. He also alleged that his counsel was ineffective because he failed to: (1) disclose the conflict; (2) seek a lower negotiated sentence; (3) investigate petitioner’s prison priors; (4) file a motion to strike a prior; (5) file a motion to suppress pursuant to Penal Code section 1538.5; (6) request a bail hearing; and (7) advise petitioner that he would be serving 85 percent of his sentence. Petitioner claimed he was prejudiced because it was more likely than not that he would not have pled nolo contendere if he had known he would be serving 85 percent of the sentence.

Petitioner entered his plea in front of Judge Robert M. Martinez. After petitioner filed his motion to withdraw his plea, he appeared in front of Judge Robert A. Dukes, who had received petitioner’s withdrawal motion. However, Judge Dukes did not rule on the motion. Instead, Judge Dukes transferred the withdrawal motion to Judge Martinez, who had previously taken petitioner’s plea. When petitioner appeared before Judge Martinez, Judge Martinez began to sentence petitioner, who was represented by Deputy Public Defender Jorge Guzman. Petitioner objected, claiming that his motion to withdraw his plea had not been adjudicated and he wanted to change counsel because Guzman was ineffective. Judge Martinez did not inquire about petitioner’s motion to withdraw his plea. Instead, because Judge Martinez erroneously believed that Judge Dukes had adjudicated the motion, he sentenced petitioner. Throughout the entire colloquy about the motion to withdraw petitioner’s plea, Guzman remained silent.

Less than a month later, petitioner filed a notice of appeal and request for a “certificate of appealability” for the first and second cases. The trial court denied the “certificate of appealability,” characterizing it as a request for certificate of probable cause, on May 14, 2019. Petitioner, a prison inmate, was not present in trial court when the court denied his request for a certificate of probable cause. The denial order was served on petitioner by mail.

On appeal, in case No. B297920, Presiding Justice Elwood Lui issued an order limiting the appeal to issues that do not require a certificate of probable cause. Appellate counsel was appointed to represent petitioner.

On July 16, 2019, in propria persona, petitioner separately filed a petition for writ of mandate in case No. B299048 challenging the trial court’s denial of his request for a “certificate of appealability.” We denied petitioner’s writ without prejudice on July 26, 2019, ordering that the petition be sent to his appointed appellate counsel for review.

After review of the supplemental record filed in the appeal, on January 13, 2020, petitioner’s appellate counsel filed this writ of mandate seeking to vacate the trial court’s order denying petitioner’s certificate of probable cause and mandating a new and different order granting petitioner’s application. We issued a notice of intent to grant a peremptory writ in the first instance, permitting a plenary opposition and reply. The Attorney General filed an opposition. Petitioner replied.

DISCUSSION

Because petitioner timely filed his petition for writ of mandate and presented a cognizable issue for appeal that was not frivolous and vexatious, we conclude that respondent abused its discretion in denying petitioner’s application for a certificate of probable cause.

I. Timeliness
II.
The Attorney General contends that petitioner had 60 days to file his petition for writ of mandate challenging the trial court’s denial of his certificate of probable cause on May 14, 2019. “Thus, in this case, petitioner had . . . until July 13, 2019, to file a petition for a writ of mandate relative to such order. (See Cal. Rules of Court, rule 8.308(a) (notice of appeal must be filed within 60 days after rendition of judgment or making of order being appealed)).” Thus, petitioner’s January 13, 2020 petition, according to the Attorney General, “is untimely by six months.”

The Attorney General is mistaken for the following reasons. First, as noted above in case No. B299048, petitioner initially filed this petition for writ of mandate in propria persona on July 16, 2019, and we denied the petition without prejudice to allow his appellate counsel to analyze the issue and determine whether a petition for writ of mandate was warranted. Second, petitioner’s July 16, 2019 filing was timely because petitioner was an inmate (Cal. Rules of Court, rule 8.25(b)(5)) and the trial court served petitioner with the denial order by mail (Code. Civ. Proc., § 1013, subd. (a)). Thus, this petition was timely. Lastly, we exercise our discretion to consider the petition under these extraordinary circumstances because the Attorney General did not show prejudice from any delay by petitioner’s appellate counsel. (Nixon Peabody LLP v. Superior Court, supra, 230 Cal.App.4th at pp. 821-822 [the 60-day deadline for nonstatutory writ petition “is not jurisdictional; an appellate court may consider a writ petition at any time despite the 60-day rule if it considers the circumstances extraordinary”].)

III. Merits
IV.
To obtain a certificate of probable cause in support of an appeal from a judgment of conviction following a plea of guilty or no contest, a defendant must comply with Penal Code section 1237.5. Section 1237.5 requires a written statement by the defendant showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. If the statement submitted by the defendant presents any cognizable issue for appeal going to the legality of the proceedings that is not clearly frivolous and vexatious, the trial court abuses its discretion if it fails to issue a certificate of probable cause. (See People v. Hoffard (1995) 10 Cal.4th 1170, 1178-1179.) “[T]he identification of even one nonfrivolous issue in the defendant’s request would warrant the issuance of a certificate—a circumstance that would permit the defendant to proceed with an appeal in which all issues could be raised.” (People v. Johnson (2009) 47 Cal.4th 668, 683.) A trial court’s denial of an application for a certificate of probable cause is reviewed by a petition for writ of mandate. (Id. at p. 676.)

The Attorney General has conceded that petitioner’s application for a certificate of probable cause was not clearly frivolous and vexatious. Further, petitioner has a right to move to withdraw a plea based on ineffective assistance of counsel and, therefore, the failure to adjudicate his withdrawal motion presents a cognizable constitutional issue. (See, e.g., People v. Brown (1986) 179 Cal.App.3d 207, 215-216.) And when petitioner raised the issue of wanting to change counsel at his sentencing hearing, Judge Martinez, mistakenly believing that Judge Dukes had already denied the motion, did not inquire as to why petitioner wanted to change counsel or consider appointing new counsel to research the merits of defendant’s motion to withdraw his plea. (See People v. Brown (2009) 175 Cal.App.4th 1469, 1472-1473 [while a defendant cannot force appointed counsel to file a baseless motion to withdraw a plea, a trial court typically appoints substitute counsel to research the merits of such a defendant’s request].)

DISPOSITION

Let a peremptory writ of mandate issue directing respondent to vacate its May 14, 2019 order denying petitioner’s application for a certificate of probable cause, and to issue a new order granting the certificate.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.