Friday, January 2, 2015
Writ Relief Improperly Granted Without OSC, Court of Appeal Rules
Prosecutor Did Not Waive Formalities by Not Objecting at Hearing, Panel Says
By KENNETH OFGANG, Staff Writer
A Los Angeles Superior Court judge erred by vacating a conviction without giving prosecutors a formal opportunity to respond, the Court of Appeal for this district has ruled.
Div. Three Tuesday sent the case of Levi Gonzalez back to the trial court for reconsideration of his petition, in which he contended that he was not advised of the immigration consequences of his 2011 plea of no contest to a misdemeanor charge of spouse abuse.
In exchange for the plea, a second misdemeanor charge, false imprisonment, was dismissed and he was placed on summary probation for three years.
Gonzalez, the husband of a U.S. citizen, alleged in his petition that he would not have entered the plea had he been aware that it would prevent him from qualifying for permanent resident status and would subject him to removal from the country. The deputy public defender who advised him, he argued, should have informed him of those possibilities or advised him to consult an immigration lawyer.
No order to show cause was issued, and no return to the petition was filed. The case was called on Sept. 20, 2013 before Judge Halim Dhanidina.
The judge asked the Long Beach deputy city prosecutor who was present what his position was, and the deputy said he knew “absolutely nothing” about the case. After noting that a proof of service had been filed, Dhanidina allowed the prosecutor time to locate a file, then asked for his response.
After the prosecutor said “The People submit it,” the judge ordered the conviction vacated and the case dismissed.
Prosecutors subsequently appealed to the Superior Court Appellate Division, which transferred the case to the Court of Appeal, where Justice Richard Aldrich, in an unpublished opinion, said the judge had no authority to grant relief without first issuing an order to show cause or a writ of habeas corpus.
He cited People v. Romero (1994) 8 Cal.4th 728, detailing the procedural requirements that a court must follow when ruling on a petition for a writ of habeas corpus, including the requirement that the court—if it finds that the writ states a prima facie case for relief—issue a writ of habeas corpus or order to show cause, thus requiring the respondent to file a written return, to which the petitioner may file a traverse.
The Romero court emphasized that “the issuance of the writ (or order to show cause) is mandatory, not optional,” and held that it was error for the Court of Appeal—which was simultaneously considering the defendant’s appeal and writ petition—to grant relief based on facts alleged in the petition, without having issued an OSC or writ.
Aldrich rejected the argument that prosecutors had waived the requirement of a writ or OSC by not objecting to the manner in which the trial judge proceeded. The formalities can be waived by stipulation, he explained, but there was no such stipulation in this case.
In reversing, he added, the panel was not expressing an opinion on the merits of the petition.
Attorneys on appeal were Long Beach Assistant City Prosecutor Randall C. Fudge for the appellant and Marc A. Karlin for Gonzalez.
The case is People v. Gonzalez, B251777.
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