Filed 6/17/20 Calderon v. Superior Court CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

JOSE GUADALUPE CALDERON,

Petitioner,

v.

THE SUPERIOR COURT OF SACRAMENTO COUNTY,

Respondent;

THE PEOPLE et al.,

Real Parties in Interest.

C088483

(Super. Ct. No. 03F00297)

OPINION ON TRANSFER

This proceeding has drifted from its pier. We will return it to its moorings. We first need to explain what exactly is before us. We thus collapse the procedural background into this introduction.

The genesis of this matter was petitioner Jose Guadalupe Calderon’s postconviction motion in the Sacramento County Superior Court (Superior Court) for the appointment of counsel to pursue filing a motion pursuant to Penal Code section 1405 (section 1405). Section 1405, originally enacted in 2000 (Stats. 2000, ch. 821, § 1), provides a procedure for a person convicted of a felony and currently serving a term of imprisonment to seek DNA testing. (§ 1405, subd. (a).) Petitioner here sought DNA evidence to impeach the eyewitness testimony of the victim identifying him.

In June 2016, the Superior Court agreed that petitioner had made the prima facie showing for appointment of counsel (see § 1405, subd. (b)(1)), at which point it did not have any discretion other than to grant the motion (citing In re Kinnamon (2005) 133 Cal.App.4th 316). However, the Department of Finance had years earlier given notice to the County of Sacramento (County) in fiscal year (FY) 2009-2010 that the mandate under section 1405 was to be suspended because it was unfunded in that budget act. The County notified the Superior Court in October 2009 that the County would consequently no longer provide appointed counsel pursuant to section 1405. The Legislature continued to suspend the mandate in the subsequent fiscal years through FY 2015-2016. Therefore, the Superior Court granted petitioner’s motion conditioned on the resumption of legislative funding of the mandate under section 1405 to provide counsel.

More than two years later, in December 2018, petitioner filed a petition for a writ of habeas corpus in this court seeking the unconditional appointment of counsel. We summarily denied the petition. (In re Jose Guadalupe Calderon on Habeas Corpus (C088483, petn. for habeas corpus den. Jan. 3, 2019).) The Supreme Court granted review and requested an answer from the Attorney General as counsel for the “non-title Respondent” Department of Corrections and Rehabilitation. Thereafter, the Supreme Court granted the petition and transferred the matter back to us with directions to issue a writ of mandate directed at the Superior Court as respondent. (In re Jose Guadalupe Calderon on Habeas Corpus, review granted Apr. 10, 2019, S253667, trans. to Court of Appeal, Third Appellate District, with directions.) In April 2019, petitioner refiled his petition for review as his petition for writ of mandate, and the Attorney General—now on behalf of the People—refiled the answer to the petition for review as the answer in this court.

We issued an order to show cause on April 24, 2019, directing a return from both the Superior Court and the People, now naming the latter as real party in interest. In June 2019, we denied a request from the People asking to be dismissed from the proceedings because the issue was not material to their interests, but we granted their alternative request to direct the Superior Court to file a return, and also directed the People to file a response to the Superior Court’s return. In the same order, we directed the inclusion of the County as a real party in interest as well, asking the County to file a return.

The Superior Court filed a return in which it included as an exhibit a new order issued in July 2019, that acceded to the relief that petitioner had originally sought, granting the motion for appointment of counsel unconditionally. The Superior Court issued the order despite acknowledging the fact that funding for the mandate under section 1405 was still suspended as of FY 2018-2019, and the County directive–not to appoint counsel while the statutory mandate was unfunded–was still operative. The Superior Court did not make any argument in its return with respect to the disposition of the writ. In their response to the Superior Court’s return, the People urged this court to dismiss the petition as moot.

The County then filed its own return. It asked that we vacate the July 2019 order, because the Superior Court could not create an obligation for the County under an unfunded statutory mandate. We asked the County to expand upon its return’s analysis in supplemental briefing directed at the issue of the propriety of its appearance in a proceeding—to which it is a stranger—to defend its financial interest. In its supplemental filing, the County now disavows any standing in the present proceeding to advance a disposition at odds with the People’s position that the matter is moot. We agree with the conclusions of the People and the County that the July 2019 order moots this writ, and we therefore will dismiss the petition for writ of mandate.

DISCUSSION

In light of our disposition, our analysis perforce is brief. While, as noted above, the duty to appoint counsel to pursue the merits of filing a motion under section 1405 is mandatory upon a prima facie showing, this is a statutory mandate. If the Legislature mandates that a local agency must provide a new program or a higher level of service, the local agency is entitled to financial aid or reimbursement, called “state ‘subvention’ ”; the Commission on State Mandates (CSM) is the entity responsible for adjudicating whether local agencies are entitled to state subvention, which it does through the vehicle of a “test claim” (the initial claim requesting state subvention under a statute) that thereafter governs subsequent claims under the provision at issue. (Coast Community College Dist. v. Commission on State Mandates (2020) 47 Cal.App.5th 415, 427 [citing Cal. Const., art. XIII B, § 6, subd. (a)].) If a budget act does not provide funding for a statutory mandate, the Legislature must specify that this absolves local agencies from any duty to comply with it. (California School Bds. Assn. v. Brown (2011) 192 Cal.App.4th 1507, 1512-1514 [citing Gov. Code, § 17581, enforcing the provisions of Cal. Const., art. XIII B, § 6, subd. (a)].)

As originally enacted, section 1405 was somewhat vague on the point at which an indigent defendant was entitled to appointment of counsel in connection with a motion under section 1405. (See id., former subd. (c), Stats. 2000, ch. 821, § 1.) As noted in the 2001 amendment, “Existing law provides that if an indigent person files a motion for DNA testing, the court shall appoint counsel to represent the person. [¶] This bill would provide that an indigent person may request appointment of counsel to file a motion for the performance of DNA testing by sending a written request to the court, as specified.” (Legis. Counsel’s Dig., Sen. Bill. No. 83 (2001-2002 Reg. Sess.) Stats 2001, Summary Dig., ch. 943, italics added.) Legislative Counsel further noted, “By requiring that counsel be appointed to perform additional duties, this bill would impose a state-mandated local program,” and “if the [CSM] determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.” (Ibid.) The provision for appointment of counsel to prepare the motion continues in the present version of the statute. (§ 1405, subd. (b).)

The CSM did exactly that in a decision in 2006 on a test claim finding, inter alia, that the costs of appointing counsel to investigate filing a motion under section 1405 to be reimbursable as a new state mandate, and promulgating “parameters and guidelines” in 2007 for seeking reimbursement for such costs from the State Controller that accrued after the effective date of the original 2000 enactment and its 2001 amendment. (We note that in its return and its supplemental briefing, the County does not discuss whether it has this reimbursement procedure available to it for the costs of the present case.)

In deciding whether to accept the concession of the People that the matter is now moot, we note that the judicial function of appointing counsel for an indigent litigant is unconnected with the political decision of the funding of costs for such counsel. (Payne v. Superior Court of Los Angeles County (1976) 17 Cal.3d 908, 920, fn. 6 [cited by the County in its return] (Payne).) Accordingly, even in the absence of the concession from the County that it cannot raise its funding issue in this venue, we do not find it proper to reverse the Superior Court’s order unconditionally appointing counsel when the People do not seek that remedy.

DISPOSITION

The petition for a writ of mandate is dismissed as moot.

/s/

BUTZ, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

MURRAY, J.