Meltz v. Superior Court

Filed 2/24/06 Meltz v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

PROCEEDINGS in mandate after superior court denied certificate of probable cause. Herbert J. Exarhos, Judge. Petition granted.

FACTUAL AND PROCEDURAL BACKGROUUND

On November 8, 2004, as part of a plea bargain, Todd Meltz entered a guilty plea to willful infliction of corporal injury on a cohabitant and admitted personally inflicting great bodily injury, for a dismissal of the balance of the charges. At the February 24, 2005 sentencing, the court suspended the imposition of sentence, granted Meltz three years' probation conditioned on 365 days of local custody, and directed Meltz to report for custody on March 8. When Meltz failed to appear on March 8, the court summarily revoked probation.

On July 19 Meltz attempted to withdraw his plea based on ineffective assistance of counsel and requested substitute counsel to assist him. The court denied Meltz's requests as untimely, stating judgment had already been imposed and Meltz had already been sentenced. On August 18 the court formally revoked probation and sentenced Meltz to three years.

Meltz filed a notice of appeal (D047093) and requested a certificate of probable cause, pointing out to the court that, under Penal Code section 1018,^[1] he had six months from the grant of probation to file his motions. The court issued an order denying the certificate on September 7, 2005, which noted the judgment of conviction had been entered on November 8, 2004, and Meltz had been sentenced on February 24.

In this petition, Meltz argues the court abused its discretion in denying him a certificate of probable cause because his request to withdraw his plea and have counsel appointed was timely under section 1018 and he had reasonable constitutional, jurisdictional or other grounds to challenge the validity of the plea. He also requests that we take judicial notice of the record in his companion appeal, D047093.

We requested a response from the People. The People have advised us they will not be opposing the writ.

DISCUSSION

Section 1018 authorizes the court for good cause shown to grant a motion to withdraw a guilty plea on "application of the defendant . . . within six months after an order granting probation is made if entry of judgment is suspended . . . ." The court granted Meltz probation on February 24, 2005. On July 19, 2005, less than five months later, the court denied Meltz's request to withdraw his guilty plea for ineffective assistance of counsel as untimely, without providing Meltz conflict-free counsel to assist him in filing a motion to withdraw the guilty plea or ever reaching the merits of such a motion. On September 7 the court denied the request for a certificate of probable cause apparently for the same reason. Because the issues Meltz was attempting to raise are not "clearly frivolous and vexatious" (People v. Ribero (1971) 4 Cal.3d 55, 63, fn. 4), the certificate should have issued.

Because the relevant facts are not in dispute, the law is well-settled, and the People do not oppose issuance of the writ, we conclude a peremptory writ in the first instance is proper. (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)

DISPOSITION

Let a writ of mandate issue directing the superior court to vacate its order of September 7, 2005, denying the certificate of probable cause and enter an order granting the certificate. The request for judicial notice is granted. The opinion will be final as to this court immediately. (Cal. Rules of Court, rule 24(b)(3).)

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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^[1] Unless otherwise indicated, all statutory references are to the Penal Code.