Metropolitan News-Enterprise


Thursday, August 23, 2001


Page 5


Court of Appeal Can’t Transfer Writ Proceeding From Superior Court Appellate Division, C.A. Rules


By a MetNews Staff Writer


The Court of Appeal’s power to transfer a matter to itself following decision by the Superior Court Appellate Division doesn’t extend to matters within the lower panel’s original jurisdiction, Div. Four of this district’s Court of Appeal ruled yesterday.

Justice Daniel Curry, writing on what he said was a matter of first impression, said the distinction between the original and appellate jurisdiction of the Appellate Division means that only cases within the latter can be transferred under California Rules of Court, Rule 62(a).

A party which seeks writ relief in the Appellate Division and fails, however, may seek the same relief in an original proceeding in the Court of Appeal, Curry made clear. And in fact, the court granted such relief, effectively overruling the Appellate Division, in the case before it yesterday.

The ruling overturns a warrant requiring Eric Humphrey, who is charged with several misdemeanors involving sexual misconduct with children, to give a blood sample for HIV testing. The panel said the judge who ordered the testing failed to observe procedural requirements set forth in Penal Code Sec. 1524.1.

Humphrey challenged the order by filing a petition for writ of prohibition in the Appellate Division. The Appellate Division summarily denied the petition, but the Court of Appeal issued an alternative writ requiring the panel to hear the merits or show cause why it should not be ordered to do so.

The Appellate Division proceeded to the merits, denying the petition and certifying its decision for publication. The Court of Appeal then transferred the case to itself and stayed disclosure of the blood test results.

The Court of Appeal yesterday vacated the order for publication and the order transferring the case, treated the petition as one for mandamus within its original jurisdiction, and granted the writ.

Curry explained that before the state Constitution was amended in 1998 by the adoption of Proposition 220, each superior court had an appellate department whose jurisdiction was limited to appeals from the municipal and justice courts.

The ballot measure, however, replaces each appellate department with an appellate division having “original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition directed to the superior court in causes subject to its appellate jurisdiction.”

What Proposition 220 didn’t change, Curry said, were the provisions of prior law, specifically Code of Civil Procedure Secs. 911 and 1471 and implementing rules of court, which limit the Court of Appeal’s transfer power to cases on appeal before the appellate division.

Turning to the merits, Curry said the warrant is invalid because it was issued on the basis of an affidavit from the victims’ mother, who lacked personal knowledge of the facts to which she swore.

“[N]othing in her declaration indicates why the affidavits could not have been submitted by persons with personal knowledge of the material facts, such as the alleged victims, medical personnel, or police officers...,” the justice declared.


Copyright 2001, Metropolitan News Company