Keith v. Superior Court
Filed 7/13/07 Keith v. Superior Court CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
MARGARET ELAINE KEITH, ) B194990
)
Petitioner, ) (Super.Ct.No. PA038933)
) (Ronald S. Coen, Judge)
v. )
)
SUPERIOR COURT OF LOS ANGELES )
COUNTY, )
)
Respondent; )
)
THE PEOPLE, )
)
Real Party in Interest. )
)
____________________________________)
PETITION for Writ of Mandate. Writ granted.
Janice Wellborn, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Stephanie A. Miyoshi, Deputy Attorney General, for Real Party in Interest.
Upon initial evaluation of this petition, the court concluded the petition had apparent merit and requested a preliminary response from the People. After reviewing the preliminary response filed by the People, which concedes that petitioner is entitled to the issuance of a certificate of probable cause concerning the trial courts denial of her request for drug-treatment probation pursuant to Penal Code section 1210.1, this court issued a Notice of Intention to Grant Peremptory Writ in the First Instance. The Notice specified the ground upon which the court intended to grant writ relief.
After this court issued the Notice, respondent entered a minute order on May 8, 2007, stating Probation was summarily revoked and a bench warrant had issued for defendant on May 1, 2007. As a bench warrant is currently outstanding, the court cannot issue a certificate of probable cause. The minute order does not cite authority for the proposition that issuance of a bench warrant divests the trial court of jurisdiction to grant a certificate of probable cause.
This court now concludes that a peremptory writ of mandate should be granted.
The record shows that petitioner satisfied the standard for issuance of the certificate of probable cause by making a prima facie showing that she qualified for mandatory probation under Penal Code section 1210.1, since she was charged with a nonviolent drug possession offense possession of a controlled substance (methamphetamine) under Health and Safety Code section 11377, subdivision (a). The information filed in the case alleges only two prior felony convictions: a 1992 conviction of Health and Safety Code section 11350 [possession of a controlled substance] and a 1992 conviction of Penal Code section 1320, subdivision (b) [failure to appear in a felony prosecution after being released on own recognizance].
Pursuant to the provisions of section 1210.1, subdivision (a), a defendant charged with a non-violent drug possession offense shall receive probation and be required to participate in and complete a drug treatment program, unless the defendant is rendered ineligible under any of the circumstances specified in subdivision (b). The disqualifying circumstances are: (1) previous conviction of one or more serious felony or violent felony within the preceding five years, subject to qualifications that are inapplicable here; (2) in addition to having been convicted of one or more nonviolent drug possession offenses, a conviction in the same proceedings of a misdemeanor unrelated to drugs or of any felony; (3) being armed with a deadly weapon, with intent to use it as a deadly weapon, while unlawfully possessing or being under the influence of specified drugs; (4) having refused drug treatment as a condition of probation; (5) having suffered two separate convictions for nonviolent narcotics offenses, together with participation in two separate drug treatment programs, and being determined by a court to be unamenable to any and all forms of available drug treatment, as defined by other statutes. (People v. Guzman (2003) 109 Cal.App.4th 341, 347.) Subdivision (c) provides that persons who have suffered multiple non-drug-related felony convictions are eligible for probation under the statute, unless certain circumstances exist.
The reasons stated by respondent for its determination that petitioner was ineligible for probation under section 1210.1 are: Based upon the record before me, she is not suitable. It should be noted that there was a bench warrant outstanding for some five years. And the statements that were given by the defendant in a supplemental report show she is not suitable for Prop. 36. And I am going to deny that.
Neither of respondents stated reasons is within any of ineligibility factors described in Penal Code section 1210.1, subdivision (b). The Supplemental Report to which respondent referred does not indicate any of the circumstances specified in subdivision (b) or (c) of section 1210.1. It states that petitioner was convicted of possession of a syringe without a permit in 2001 and her probation on that conviction was revoked in 2006 and a 20-day jail sentence was imposed. The only statements concerning drugs the Supplemental Report attributes to petitioner are that she had used heroin for 15 years until 2001 and that she used methamphetamine for two years until May 2000, but resumed using it approximately six months before she was arrested on the warrant issued in these proceedings in 2001.
A trial courts sole objective with regard to certificates of probable cause is to eliminate appeals having no possible legal basis. A trial court therefore abuses its discretion if it fails to issue a certificate of probable cause on an issue that is not clearly frivolous and vexatious. (People v. Holland (1978) 23 Cal.3d 77, at 84.) A certificate of probable cause must be issued if an honest difference of opinion could exist on the merits of the appeal. (People v. Cole (2001) 88 Cal.App.4th 850, at 860 fn. 3; People v. Hayton (1979) 95 Cal.App.3d 413, 416 fn. 2.)
We conclude that the petition demonstrates petitioners entitlement to the issuance of a certificate of probable cause.
Disposition
Let a peremptory writ of mandate issue directing respondent to vacate its prior order of September 21, 2006, which denied petitioners application for a certificate of probable cause, and, thereafter, to enter a new and different order granting a certificate of probable cause with regard to the September 19, 2006, order that denies petitioners application for probation pursuant to Penal Code section 1210.1.
The temporary stay of the briefing schedule in related pending appeal B194028 shall remain in effect until respondent complies with the above-stated direction of this court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P.J.
We concur:
WILLHITE, J.
MANELLA, J.
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