Filed 5/18/18 Abbas v. Superior Court CA4/3


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


MOHAMED KAMAL ABBAS,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

THE PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.




G055628

(Super. Ct. No. 10HF2051)

O P I N I O N

Original proceedings; petition for a writ of mandate to file a notice of appeal. Petition granted.
Appellate Defenders, Inc., and Patricia Ihara for Petitioner.
Xavier Becerra, Attorney General, and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General for Real Party in Interest.

THE COURT:*

Petitioner Mohamed Kamal Abbas filed a petition for writ of mandate ordering respondent court to file his notice of appeal or allow the constructive filing of an amended notice of appeal.
In March 2011, petitioner pled guilty to first-degree burglary. In May 2017, he filed a motion pursuant to Penal Code section 1473.7 to dismiss his felony conviction. This section permits a defendant who is no longer in custody to file a motion to vacate a felony conviction or sentence. Respondent court denied the motion on August 11, 2017.
On October 6, 2017, counsel filed a timely notice of appeal. However, he inadvertently checked a box on the Judicial Council approved form indicating petitioner was challenging the validity of the plea. Although not required to do so, counsel also filed a request for certificate of probable cause.
On October 10, 2017, respondent court denied petitioner’s request for a certificate of probable cause. Petitioner was subsequently advised that the notice of appeal was received, but marked “inoperative” because respondent court had denied the request for a certificate of probable cause.
Citing Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171,180, this court invited real party in interest to file opposition to the petition. On March 22, 2017, the Attorney General stated it had no opposition to petitioner’s request. We accept the Attorney General’s concession. Penal Code section 1473.7 states: “An order granting or denying the motion is appealable under subdivision (b) of Section 1237 as an order after judgment affecting the substantial rights of a party.”
The petition is granted. The Clerk of the Superior Court is ordered to file the October 6, 2017, notice of appeal. Further proceedings, including the preparation of the record on appeal, are to be conducted according to the applicable rules of court. In the interest of justice, the opinion in this matter is deemed final as to this court forthwith.