Mendieta v. Municipal Court

Opinion

THE COURT.

*

Mike Mendieta pleaded guilty in the municipal court to disturbing of the peace and petty theft (Pen. Code, §§ 415, 484, 488). After sentence he moved to set aside his plea on the ground his attorney had advised him no jail time would be imposed, but the court granted probation conditioned on 90 days in the county jail. After denial of his motion to set aside the plea, defendant pursued two remedies: he appealed to the appellate department of the superior court, which affirmed his conviction without opinion; and he also unsuccessfully sought a writ of mandate in the superior court to compel the municipal court to vacate the plea. Mendieta now seeks to appeal both the order of the municipal court denying his motion to vacate the plea and also the superior court judgment denying a writ of mandate. Only the latter is appealable to this court and the purported appeal from the municipal court order should be dismissed.

[293]

As a preliminary matter, we note Mendieta has availed himself of the so-called procedural “loophole” described in

Gilbert

v.

Municipal Court

(1977) 73 Cal.App.3d 723 [140 Cal.Rptr. 897], and

Burrus

v.

Municipal Court

(1973) 36 Cal.App.3d 233 [111 Cal.Rptr. 539], where a judgment of the municipal court, not normally appealable to the Court of Appeal, is converted into an original judgment of the superior court, which is appealable here, by the simple expedient of applying in superior court for a writ of mandate directed against the municipal court and then appealing to this court, the superior court judgment denying the writ. Such a procedure circumvents the established channels of judicial review which preclude review of municipal court judgments as of right in the Court of Appeal, and is highly disfavored, so that sanctions may be imposed for unwarranted use of the procedure. (See