Cummins v. Superior Court
Filed 4/12/07 Cummins v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ROBERT STEVENS CUMMINS, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. | G038426 (Super. Ct. No. 06CF3616) O P I N I O N |
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Wendy S. Lindley, Judge. Petition granted.
Deborah A. Kwast, Public Defender, Thomas Havlena, Chief Deputy Public Defender, Kevin Phillips, Assistant Public Defender, and Thomas J. Lo, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Tony Rackauckas, District Attorney and Gregory J. Robischon, Assistant Deputy District Attorney, for Real Party in Interest.
THE COURT:*
More than three months after Robert Steven Cummins pleaded guilty and was sentenced to a drug treatment program, the district attorney filed an amended complaint alleging two strikes and also filed a motion to vacate the guilty plea on the basis that the strikes made Cummins ineligible for the drug treatment program. The court granted the motion. Cummins contends the district attorney lacked authority to amend the complaint after sentencing, and the court erred when it vacated his guilty plea. We agree and the petition is granted.
On November 22, 2006, Robert Steven Cummins pleaded guilty to possession of a controlled substance and also admitted that he suffered a prior conviction pursuant to Penal Code section 667.5, subdivision (b).[1] On the same day, the court determined that Cummins was eligible for the drug treatment program pursuant to section 1210 and pronounced judgment by suspending the imposition of sentence and placing Cummins on three years formal probation with terms and conditions attached to his grant of probation.
On March 7, 2007, the district attorney filed an amended complaint alleging two strikes that were not alleged in the original complaint to which Cummins pleaded guilty. The district attorney also filed a motion to vacate the plea on the basis that Cummins is ineligible to participate in the drug treatment program because of the two strikes. After a hearing, the court granted the motion to vacate the plea on the basis that the sentence was illegal. The court ordered the grant of probation and the terms and conditions of probation vacated, remanded Cummins into custody, set bail in the amount of $1 million, and set the matter for arraignment on the amended complaint.
Cummins filed this petition seeking a peremptory writ and a stay of the arraignment. This court requested and received an informal response (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171) in which the district attorney concedes the petition has merit and Cummins is entitled to the relief requested.
Section 969.5, subdivision (a) states, Whenever it shall be discovered that a pending complaint to which a plea of guilty has been made under Section 859a does not charge all prior felonies of which the defendant has been convicted either in this state or elsewhere, the complaint may be forthwith amended to charge the prior conviction or convictions and the amendments may and shall be made upon order of the court.
The issue in this case is whether the complaint was pending at the time the district attorney filed the amended complaint and the court vacated the plea. People v. Valladoli (1996) 13 Cal.4th 590, held that the statute permits the amendment of an indictment, information, or complaint up until sentencing. (Id. at pp. 603-604.) This is consistent with the report by the Commission for the Reform of Criminal Procedure, the original framers of the statute.
In this case, Cummins pleaded guilty and was sentenced on November 22, 2006. When the district attorney filed an amended complaint more than three months later on March 7, 2007, the complaint was no longer pending. As such, the district attorney lacked the authority to file the amended complaint and likewise, the court was without the authority to vacate Cumminss plea. The district attorney concedes Cummins is entitled to the relief requested and for the forgoing reasons, the petition is granted.
DISPOSITION
Let a peremptory writ of mandate issue commanding the superior court to vacate its order granting real partys motion to vacate the plea and enter a new order denying the motion. The court is further ordered to dismiss the amended complaint filed on March 7, 2007, reinstate all terms and conditions of probation, vacate the order remanding petitioner into the custody of the Orange County Sheriff, and issue a new order for petitioners immediate release.
The stay previously issued is dissolved.
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*Before Rylaarsdam, Acting P. J., Aronson, J., and Ikola, J.
[1] All further references are to the Penal Code.
