In re Lopez

Filed 9/25/07 In re Lopez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

On January 22, 2007 petitioner Jesus Lopez filed a petition for writ of habeas corpus in San Francisco County Superior Court, challenging the Governors December 21, 2006 reversal of the Board of Parole Hearings August 10, 2006 decision to grant him parole. Thus, pursuant to California Rules of Court, rule 4.551(a)(3)(A), petitioner was entitled to a ruling on his petition by March 23, 2007. When no decision was issued, taking the appropriate step provided for by rule 4.551(a)(3)(B), petitioner filed a motion in the superior court, dated May 20, 2007, seeking a ruling from the superior court within 60 days.

Receiving no further response from the superior court, however, petitioner then filed in this court a Motion for Order to Show Cause why Petitioners Petition for Writ of Habeas Corpus Should Not Be Granted on August 7, 2007. We requested informal briefing and, on August 28, the Attorney General indicated that the superior court had lost the petition but was going to attempt to locate it, and if unable to do so would recreate the file. The Attorney General also conceded that because the superior court received the petition on January 22, 2007 . . . petitioner appears to be entitled to have the presiding judge of the superior court assign the matter and calendar it for decision within 30 days. No commitment, however, was made that this would happen; neither have we been informed that it has happened.

On September 6, 2007 we construed petitioners motion as a petition for a writ of mandate, gave notice pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 that we may issue a peremptory writ in the first instance, and set September 17, 2007 as the deadline for either party to provide further briefing. We also indicated that in the absence of any reason not to do so, we intended to issue a peremptory writ directing the San Francisco County Superior Court to decide petitioners Petition for Writ of Habeas Corpus . . . within 30 days. Finally, on September 6, we also directed the Clerk of the Court to copy our file in this case and serve it on the San Francisco Superior Court, in order to facilitate the recreation of the file.

No party has filed any supplemental briefing in response to our September 6 order; neither have we been informed that the superior court has decided this issue.

This court may employ the accelerated Palmaprocedure when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237 & 1240-1241.) Here there is no debate: petitioner is entitled to a prompt decision from the superior court on his petition challenging the Governors overturning his parole decision. Consequently, let a peremptory writ of mandate issue commanding respondent superior court to issue an opinion on petitioners petition for writ of habeas corpus, originally filed January 22, 2007, within 30 days of this decision. (See Cal. Rules of Court, rule 4.551(a)(3)(B)(ii).) This decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264 (b)(3).)

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Horner, J.*

We concur:

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Pollak, Acting P. J.

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Siggins, J.

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* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.