Dumlao v. Sup. Ct.

Filed 8/31/06 Dumlao v. Sup. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDING in mandamus following the superior court's denial of a petition for writ of habeas corpus challenging the denial of parole. Petition granted to address venue and appointment of counsel issues. Jeffrey B. Jones and Raymond A Cota, Judges.

FACTUAL AND PROCEDURAL BACKGROUND

Since 1981 petitioner John Klever Dumlao has been serving a sentence of life with the possibility of parole plus nine years. The sentence is for kidnapping and robbery related offenses committed in Alameda County.

In July 2005 the Board of Parole Hearings conducted a subsequent parole hearing. At the hearing, the Board concluded Dumlao was not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released on parole. The Board based its decision on the circumstances of Dumlao's commitment offense, his extensive criminal history, his poor institutional behavior and programming, and his lack of marketable skills or suitable employment plans upon parole.

Dumlao, who was then incarcerated at Centinela State Prison in Imperial County, filed a petition for writ of habeas corpus with the Imperial County Superior Court challenging the Board's decision. In the petition, Dumlao contended the Board's decision violated the federal constitution's due process and equal protection clauses because the Board arbitrarily and capriciously refused to consider various factors demonstrating his parole suitability. These factors purportedly include the lack of violence in his criminal history, his prison counselor's belief that he would not pose a threat to society if released, his most recent prison programming, and his commitment to enter a residential drug treatment program upon release. He also contended the Board based its decision on false information contained in a probation report. Along with the petition, Dumlao filed a declaration stating that he had no income or assets and requesting appointment of counsel to represent him.

Approximately one month after Dumlao filed the petition, the superior court issued an Order to Show Cause (OSC). Although the superior court typically indicates its basis for issuing an OSC, the superior court did not do so in this case. Nonetheless, the issuance of an OSC means the superior court made a preliminary determination that Dumlao would be entitled to relief if he proved the factual allegations in his petition. (People v. Duvall (1995) 9 Cal.4th 464, 475.)

The superior court gave the respondent, the warden of Centinela State Prison, 30 days to submit a return to the OSC. The superior court also gave Dumlao 30 days after the return was filed and served to submit a denial. However, the superior court did not appoint counsel to represent Dumlao or otherwise rule on Dumlao's request for counsel.

The warden submitted a return disputing each of Dumlao's contentions. Dumlao did not submit a denial within the specified timeframe and, consequently, the superior court deemed the factual allegations in the return admitted. The superior court then denied the petition, finding that the factual allegations in the return showed the Board's decision was supported by substantial evidence and that there was no prejudicial failure to proceed as required by law.

A few days after the superior court issued the order denying Dumlao's petition, Dumlao wrote the superior court explaining that he had not filed his denial yet because he did not know how and he was having trouble accessing the law library because the prison was in lockdown. He also reiterated his request for appointment of counsel.

It appears Dumlao's letter and the superior court's order denying his petition crossed in the mail. The superior court did not respond to the letter or take further action in the case.

Dumlao subsequently filed a petition for writ of habeas corpus with this court. The petition is substantially similar to the one filed below. We reviewed the superior court's file (EHC00682) and take judicial notice of it. (Evid. Code, §§ 452, subd. (d); 459.)

We then issued an order, stating we were treating the petition filed with this court as a petition for writ of mandate and requesting the warden submit a preliminary opposition addressing two issues. These issues were: (1) whether the trial court erred by failing to transfer Dumlao's petition to the Alameda County Superior Court before determining that the petition stated a prima facie case for relief; and (2) whether, having issued an OSC, the trial court erred in failing to appoint counsel to represent Dumlao.

The warden submitted a preliminary opposition objecting to this court's decision to treat the petition as a petition for writ of mandate. The warden contends a writ of mandate is not appropriate because there is no ministerial act at issue. Instead, the superior's court ruling was an exercise of discretion. The warden also contends that Dumlao has an adequate remedy at law for any superior court errors, namely the petition for writ of habeas corpus he filed with this court.

Regarding the venue issue, the warden acknowledges that the superior court should have transferred the case to Alameda County Superior Court under the venue rules established in In re Roberts (2005) 36 Cal.4th 575, 585. However, the warden contends the error is harmless because the California constitution gives all superior courts original jurisdiction over habeas proceedings and the Imperial County Superior Court is as capable as any other to decide this matter. In addition, the warden contends the transfer would not have remedied any of the concerns that prompted the Roberts venue rules.

Regarding the appointment of counsel issue, the warden contends the superior court was not required to appoint counsel because Dumlao did not request counsel. The warden also contends that Dumlao did not provide the superior court with evidence of his indigence.

After reviewing the briefing, we notified the parties that the court was considering issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) We now conclude that issuing a peremptory writ in the first instance is appropriate because the applicable law is well settled and it is clear that Dumlao is entitled to relief for the superior court's failure to appoint counsel for him. (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassen v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)

DISCUSSION

I. Propriety of Proceeding in Mandamus

Preliminary, we address the warden's contention that this court may not treat the petition filed here as a petition for writ of mandate. An otherwise meritorious petition for extraordinary writ will not be denied simply because it is mislabeled. Instead, the courts will treat the petition as the type that provides the proper remedy. (See, e.g., Neal v. State (1960) 55 Cal.2d 11, 16; Owens v. Superior Court (1959) 52 Cal.2d 822, 827; Jackson v. Superior Court (1980) 110 Cal.App.3d 174, 178.)

A writ of mandamus is generally used to compel a court to perform a mandatory duty when there is no other plain, speedy, or adequate remedy at law. (Code Civ. Proc., §§ 1085, 1086; Payne v. Superior Court (1976) 17 Cal.3d 908, 925; Loder v. Municipal Court (1976) 17 Cal.3d 859, 863.) Mandamus provides the proper remedy in this case because, as explained in part III below, the superior court had a mandatory duty to appoint or, at least consider appointing, counsel to represent Dumlao when it issued the OSC. The superior court's failure to do so resulted in the dismissal of Dumlao's petition on technical grounds, and the superior court's actions are not otherwise appealable. (In re Crow (1971) 4 Cal.3d 613, 621 fn. 8.)

II. Proper Venue for Petition

We next address the venue issue. The warden acknowledges in his preliminary opposition that the superior court should have transferred this case to Alameda County Superior Court before determining whether the petition stated a prima facie case for relief. (In re Roberts, supra, 36 Cal.4th at p. 585.) While we do not regard the failure to follow Supreme Court precedent lightly, we are mindful of the practical considerations raised by the warden and we would not be proceeding in this manner if this were the superior court's only error. Instead, we would have denied the petition without prejudice to being filed in the appropriate appellate district. It is the superior court's failure to appoint counsel that prompts our current course.

III. Failure to Appoint Counsel

Finally, we address the appointment of counsel issue. Generally, an indigent prisoner is not entitled to appointed counsel to assist with the preparation of a habeas petition. However, if an indigent prisoner files a habeas corpus petition and the court determines the petition states a prima facie case for relief, then due process considerations require the court to appoint counsel to represent the prisoner. (People v. Barton (1978) 21 Cal.3d 513, 519 fn. 3; People v. Shipman (1965) 62 Cal.2d 226, 232; Cal. Rules of Court, rule 4.551(c)(2).) Although the warden contends that Dumlao did not request appointed counsel or claim indigence, this is contention is inaccurate. As indicated above, Dumlao filed a declaration stating that he had no income or assets and requesting appointment of counsel on the same day he filed his petition. Accordingly, when the superior court issued the OSC, the superior court was required to appoint or, at least consider appointing, counsel to represent Dumlao.

The superior court compounded its error by denying the petition because Dumlao did not file a denial. Had the superior court appointed counsel for Dumlao, counsel would have filed the denial or stipulated that the petition be treated as the denial. (See, e.g., People v. Duvall, supra, 9 Cal.4th at p. 477.) Then, the superior court would have determined what, if any, issues were controverted and how best to proceed, including whether to conduct an evidentiary hearing. (In re Romero (1994) 8 Cal.4th 728, 739-740.)

Although a habeas petition is treated as an original proceeding in the court of appeal, the court of appeal's handling of a habeas petition is affected by whether an evidentiary hearing occurred in the superior court. When an evidentiary hearing occurs, the court of appeal must give great weight to the superior court's factual findings, particularly regarding the credibility of witnesses. (In re Wright (1978) 78 Cal.App.3d 788, 801.) Since the record does not reveal why the superior court issued the OSC, we cannot discern whether an evidentiary hearing would have occurred in this case had counsel been appointed. Therefore, we cannot conclude with certainty that the court of appeal's consideration of the matter as an original proceeding would cure the due process violation, much less the perception of unfairness inherent in such a violation.

Accordingly, we conclude the appropriate remedy under the unique circumstances of this case is to grant relief by mandate and direct the superior court to vacate its order denying Dumlao's petition for writ of habeas corpus, to discharge the OSC as improvidently issued, and to transfer the petition to the Alameda County Superior Court for further proceedings. Nothing in our decision is intended to suggest a particular path for the Alameda County Superior Court as the petition will be an original proceeding before that court.

DISPOSITION

Let a writ of mandate issue directing the superior court to vacate its order denying Dumlao's petition for writ of habeas corpus, to discharge the OSC as improvidently

issued, and to transfer the petition to the Alameda County Superior Court for further proceedings. This opinion is final immediately as to this court. (Cal. Rules of Court, rule 24(b)(3).)

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.