Toles v. Superior Court

Filed 3/9/07 Toles v. Superior Court CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

ORIGINAL PROCEEDING; petition for writ of mandate. Eric C. Taylor, Judge. Petition granted.

Randi Covin for Petitioner.

No appearance for Respondent.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

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We hold that the trial court abused its discretion in refusing to grant a certificate of probable cause where the defendant presented a reasonably meritorious issue for appeal.

BACKGROUND

On December 2, 2004, and on January 5, 2005, at Big 5 sporting goods stores in Torrance, Corey Antionne Toles and codefendant Antonio Lamont McClellan robbed five victims at gunpoint. Traveion Pollard was prosecuted separately for the Big 5 robberies that occurred on January 5, 2005. All three were members of the 99th Street Mafia Crips.

McClellan and Toles were charged with six counts of robbery and one count of possession of ammunition by a felon. It was alleged that Toles had one strike and one prior prison term.

A jury trial commenced before the Honorable William R. Hollingsworth, Jr. On September 15, 2005, Toless motion for a mistrial was granted. Toles joined in McClellans motion to dismiss the action for outrageous police misconduct. In support of the motion to dismiss, they asserted that Torrance detectives had not provided evidence (including police reports) involving Pollard; such information would have been exculpatory, because Pollard might have been one of the robbers. A hearing was conducted at which Torrance Police Department Detective Kranke testified that he did not disclose the reports, because he believed that that Pollards case was totally separate from the proceedings against Toles and McClellan. Toles and McClellan countered that the detectives testimony was unbelievable and speculated that Detective Krankes sole purpose in failing to disclose the reports was to protect Pollard.

Taking the position that information about Pollard was only marginally favorable to the defense, the People opposed the motion to dismiss. The People pointed out that, while two witnesses had picked Pollards photograph out of a six-pack as involved in the January robbery, only one of those witnesses identified Pollard as the robber who was armed. Other evidence, including a statement from Pollards girlfriend, show that McClellan was involved in the robberies on both dates.

Judge Hollingsworth concluded there was some misconduct, but the misconduct did not rise to the level of being outrageous. Judge Hollingsworth refused to dismiss the case. Instead, Judge Hollingsworth struck the firearm use allegations on four counts and went on to state that he would consider prohibiting Detective Kranke from testifying.

Both Toles and McClellan entered pleas. McClellans counsel attempted to preserve one issue for appeal. At the time he entered his plea and waived his appellate rights, his counsel stated that McClellan wished to preserve for appeal his right to challenge the ruling on his motion to dismiss: There would be a waiver as to the appellate rights as to that issue. [] The only appellate issue that I know that [McClellan] has already indicated he wants to preserve is on the motion for sanctions to dismiss the case for other reasons, that he would need a certificate of probable cause or thats a motion thats been heard and filed already and I dont think its inconsistent with this, what the court is asking. So there would be a waiver.

Judge Taylor then asked, Is that correct? McClellan replied, Yes. Toless counsel, a deputy public defender, stated, The same for Mr. Toles. Toles then said, Yes.

Toles timely requested issuance of a certificate of probable cause, stating in support: Defendant, Corey Toles, voluntarily pleaded no contest in this matter after the court denied defense motion to dismiss due to outrageous police misconduct. Defendant contends the court erred in denying defense motion to dismiss and but for that error would not have had to plead in this matter to avail himself of offer. [] Mr. Toles [pleaded] no contest with the understanding from the court that he did not waive his right to appeal the courts denial of defense motion to dismiss for outrageous police misconduct.

On June 1, Judge Taylor denied the request without setting forth any reasons.^[1]

DISCUSSION

Toles cannot pursue an appeal without the issuance of a certificate of probable cause. Penal Code section 1237.5 provides: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

Toles was required to show that the issue he seeks to raise on appeal involves reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings and that the issue was not wholly frivolous. (People v. Mendez (1999) 19 Cal.4th 1084, 1095; People v. Panizzon (1996) 13 Cal.4th 68, 75.) He did so; Toles intends to raise the issue that police misconduct not only supported an evidentiary sanction at trial, but also supported dismissal of the entire prosecution.

Having joined in McClellans waiver (which, arguably, excluded the specific issue that McClellans counsel stated would be preserved for appeal), Toless waiver of his right to appeal may not have knowing, intelligent, and voluntary nor valid, express, and unrestricted. (People v. Panizzon, supra, 13 Cal.4th at pp. 84, 89.)

DISPOSITION

As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate in the first instance. (Code Civ. Proc., l088; Alexander v. Superior Court (l993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the courts intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of May 1, 2006, denying Petitioners request for a certificate of probable cause, and to issue a new and different order granting same, in Los Angeles Superior Court case No. YA060725, entitled People v. Corey Antionne Toles.

NOT TO BE PUBLISHED

THE COURT:

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MALLANO, Acting P. J. VOGEL, J. ROTHSCHILD, J.

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^[1] We granted McClellans petition for review of the same order on February 1, 2007. (B195477.) Toles filed the instant petition on February 13, 2007.