Filed 5/3/17 Barboza v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


CAROLINE BARBOZA,

Petitioner,

v.

THE SUPERIOR COURT OF FRESNO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.


F074829

(Fresno Super. Ct. Nos. F10905242, F15906833 & 2621)


OPINION

THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of mandate. Donald S. Black and F. Brian Alvarez, Judges.
Richard M. Oberto for Petitioner.
No appearance for Respondent.
Kamala D. Harris, Attorney General, and Max Feinstat, Deputy Attorney General, for Real Party in Interest.
-ooOoo-
Caroline Barboza (petitioner) challenges the denial by the Appellate Division of the Superior Court of Fresno County of her “Petition for Constructive Filing of Notice of Appeal and Request for Certificate of Probable Cause … (F10905242) and for Consolidation of Cases on Appeal.” The relief sought by petitioner includes a request that she be granted a belated appeal in Fresno County Superior Court case No. F10905242.
PROCEDURAL HISTORY
Petitioner pled nolo contendere to a misdemeanor charge in Fresno County Superior Court case No. F15906833.
Petitioner concedes that the misdemeanor conviction was the basis for the revocation of petitioner’s felony probation in Fresno County Superior Court case No. F10905242.
On November 12, 2015, petitioner was sentenced in both the misdemeanor case and the felony probation revocation case at the same hearing by the same judge.
On December 2, 2015, petitioner’s attorney filed in the misdemeanor case a notice of appeal and an attached request for certificate of probable cause. The request was granted. The notice of appeal did not designate that it was also a notice of appeal from the revocation in Fresno County Superior Court case No. F10905242.
On October 27, 2016, petitioner filed in the appellate division a “Petition for Constructive Filing of Notice of Appeal and Request for Certificate of Probable Cause (F10905242) and for Consolidation of Cases on Appeal.” That petition was denied on November 10, 2016.
On December 9, 2016, petitioner filed in this court a petition for writ of mandate challenging the denial of her petition on November 10, 2016. The petition in this action sought in part a belated appeal in Fresno County Superior Court case No. F10905242.
On December 16, 2016, this court issued the following order:
“The Attorney General is granted leave to file, on or before 20 days from the date of this order, a letter brief addressing only these issues: Should the petition be deemed a request that the notice of appeal filed December 2, 2015, in action No. F15906833, be designated a constructive filing of a notice of appeal in action No. F10905242? If so, should that request be granted?
“If a letter brief is not filed, this court will conclude the Attorney General agrees the notice of appeal filed in action No. F15906833 be designated a constructive filing of a notice of appeal in action No. [F]10905242. In that event, the Clerk of the Fresno County Superior Court will be directed to file the notice of appeal in action No. F10905242, and will be directed to prepare the record on appeal in action No. F10905242 in accordance with the rules of the California Rules of Court.”
The letter brief filed on December 22, 2016, by the Attorney General expressly conceded:
“Respondent does not oppose the issuance of an order from this Court designating petitioner’s notice of appeal filed on December 2, 2015, in Fresno County case no. F15906833, as being a notice of appeal in case no. F10905242. Petitioner’s allegations appear to be sufficient to make a prima facie showing for relief from default under the Sixth Amendment right to counsel. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.)”
This court’s order and the response filed by the Attorney General provided notice to the parties that this court might issue relief directed not at the appellate division as requested by petitioner but instead issue relief directed to the Fresno County Superior Court Clerk to create an appeal from the felony probation revocation in case No. F10905242.
DISCUSSION
The petition filed in this court was designated by petitioner to be a petition for writ of mandate. The most appropriate writ for issuing the relief granted in this opinion is a petition for writ of habeas corpus.
Despite petitioner’s mislabeling of this action as one in the nature of mandate, this court may deem the petition for writ of mandate to also be in part a petition for writ of habeas corpus. The general rule is that neither the mislabeling of a writ nor a defective prayer will bar relief if the pleading sets forth proper allegations and proof. (8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 232, p. 1142.)

“The proper remedy, if any, is habeas corpus. If the facts justify this relief it is immaterial that petitioner had prayed for an inappropriate one. [Citations.] Accordingly, we treat this petition as one for a writ of habeas corpus.” (Neal v. State of California (1960) 55 Cal.2d 11, 16.)
Pursuant to the concession by the Attorney General in the response and the general rule quoted above, this court deems this petition to be in part a petition for a writ of habeas corpus and concludes that petitioner is entitled to a belated appeal in case No. F10905242.
The petition filed in the appellate division asserted that counsel inadvertently filed a notice of appeal that designated it was only from Fresno County Superior Court case No. F15906833 and that the notice of appeal should have stated it was also from case No. F10905242. The sole ground for the revocation of probation in case No. F10905242 was petitioner’s plea of nolo contendere in case No. F15906833. Petitioner was sentenced in both cases on November 12, 2015, at the same time and by the same judge. There could be no legitimate tactical reason why the notice of appeal should not have included both case numbers.
The Attorney General has correctly conceded that petitioner is entitled to a belated appeal in Fresno County Superior Court case No. F10905242.
DISPOSITION
Let a writ of habeas corpus issue directing the Fresno County Superior Court Clerk to make a copy of the notice of appeal filed in Fresno County Superior Court case No. F15906833, to file that copy in Fresno County Superior Court case No. F10905242, to deem that copy of the notice of appeal to be timely filed, and to prepare the record on appeal in accordance with the applicable rules of the California Rules of Court.
Insofar as the petition in the above entitled action requests relief in addition to that granted above, the petition is denied. (Cal. Rules of Court, rule 8.1000 et seq.)