In Re Mazoros

Opinion

TAYLOR, P. J.

While the appeal of petitioner, Gust D. Mazoros (1 Crim. No. 14832) was pending in this court and calendared for oral argument on October 11, 1977, a petition for a writ of habeas corpus was filed and summarily denied. Thereafter, on September 26, 1977, Mazoros filed his petition for a writ of habeas corpus with the state Supreme Court. On October 6, 1977, the Supreme Court issued an order to show cause before this court.

1

Although the petition for habeas corpus stated that argument on the appeal was set for October 11, 1977, the Supreme Court order was not filed in this court until the afternoon of October 12, 1977,

after

the oral argument on the appeal. On October 13, 1977, after having been notified that the appeal was pending before this division rather than Division One, the Supreme Court entered the following order: “The above entitled proceeding now pending in the Court of Appeal, First District, Division One, is transferred to First District, Division Two.”

Under the circumstances, we did not order the habeas corpus proceeding on calendar as many issues cognizable on habeas corpus can be resolved on the basis of documentary evidence

(In re Hochberg

(1970) 2 Cal.3d 870, 873, fn. 2, p. 874 [87 Cal.Rptr. 681, 471 P.2d 1]). A return and traverse have been filed, and no objection has been made to the absence of a hearing on the order to show cause. Once an order to

[53]

show cause or alternative writ issues, however, the matter becomes a “cause,” pursuant to the California Constitution (art. VI, § 14) and requires a written opinion.

The petition is based on a ground identical to Mazoros’ major contention on his appeal, namely, that his physical and mental condition precluded him from being “present” at his trial for grand theft (Pen. Code, § 484). The petition sought alternative relief as follows: (1) a writ of habeas corpus and to restore petitioner to liberty or grant a new trial and the right to bail pending retrial or, in the alternative, (2) a remand to this court to consider the writ in conjunction with the pending appeal; or (3) a remand to the Superior Court of Santa Clara County for an evidentiary hearing. While we have considered this writ in conjunction with the appeal, we have chosen not to consolidate the writ proceedings with the appeal on the merits (cf.