Drake v. Superior Court

[1464]

Opinion

DUFFY, J.

Justin S. Drake, the petitioner herein, is the appellant in a related case following a criminal conviction. In this case, he petitions for a peremptory writ of mandate ordering the superior court, the respondent herein, to issue a certificate of probable cause for his appeal. We will issue a peremptory writ in the first instance directing respondent court to vacate its order denying petitioner’s application for a certificate of probable cause.

(Palma v. U.S. Industrial Fasteners, Inc.

(1984) 36 Cal.3d 171, 180 [203 Cal.Rptr. 626, 681 P.2d 893];

Lewis v. Superior Court

(1999) 19 Cal.4th 1232, 1240-1241 [82 Cal.Rptr.2d 85, 970 P.2d 872].) The remedy we provide, however, is limited: the superior court (hereafter referred to as the trial court) is not required to grant petitioner’s application for a certificate of probable cause, but need only consider his application on the merits or on procedural grounds other than untimeliness, the ground on which the court originally denied the certificate request.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Background Facts

Petitioner was convicted on July 18, 2008, after pleading no contest to one count of grand theft of a firearm (Pen. Code, § 487, subd. (d)(2)). A plea of this type must be “voluntary and intelligent under the totality of the circumstances.” (Pe

ople v. Marlow

(2004) 34 Cal.4th 131, 147 [17 Cal.Rptr.3d 825, 96 P.3d 126] [speaking of a guilty plea].) On August 27, 2008, petitioner moved to withdraw his plea on the ground that because of mental and physical infirmities when he entered it he did not do so voluntarily and intelligently.

The motion was supported by various medical records and included petitioner’s declaration of August 27, 2008, that he believed he could receive urgently and vitally needed medical treatment only by pleading no contest and, he hoped, being taken from the custody of jail authorities forthwith.