People v. Noble CA4/1

Filed 12/15/20 P. v. Noble CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077542

Plaintiff and Respondent,

v. (Super. Ct. Nos. SCN351073, HCN1627) JOHN WESLEY NOBLE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, John Wesley Noble was charged with a murder which occurred in 1991. In October 2016, Noble pleaded guilty to second degree murder

(Pen. Code,1 § 187, subd. (a)) and admitted an enhancement under

1 All further statutory references are to the Penal Code.

section 12022, subdivision (a)(1). He was sentenced to an indeterminate term of 15 years to life. Noble did not appeal either his plea or sentence. In February2020, Noble filed a petition for writ of mandate in the trial court seeking to have the court rule on motions to vacate his convictions which had previously been denied. The trial court denied the petition by written order which provided in part: “In criminal cases a Writ of Mandamus or Mandate is used to compel a court to perform a duty which is imposed by law when no plain, speedy, or adequate remedy is available. [(Civil Procedure Sections 1085-1086; Payne v. Superior Court (1976) 17 Cal. 3d 908, 925.)] Failure to allege and prove a duty of the respondent to act will defeat Petitioner’s right to relief. [(Bradshaw v. Duffy (1980) 104 Cal.App.3d 475, 481.)]

“Here Petitioner has not alleged any facts or law which support his apparent claim that he is unlawfully detained because Real Party in Interest and Respondent lack personal and subject matter jurisdiction over him and the judgment against him is void. Further, it is unclear what his claim is.