Opinion
E067705
12-13-2017
LAWRENCE RIVERA, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Lawrence Rivera, in pro. per.; Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. J. Stephen Pascover; Cummings, McClorey, Davis, Acho & Associates, and Sarah L. Overton, for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. WHCJS1500282) OPINION ORIGINAL PROCEEDINGS; petition for writ of mandate. Katrina West, Judge. Petition granted. Lawrence Rivera, in pro. per.; Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. J. Stephen Pascover; Cummings, McClorey, Davis, Acho & Associates, and Sarah L. Overton, for Respondent. No appearance for Real Party in Interest.
In this matter we reviewed the petition, concluded it appeared to have merit when construed as a mandamus petition, and requested an informal response from respondent. Continuing to find merit in the petition, we then appointed counsel for petitioner, set an order to show cause, and received and considered a return and traverse. For the reasons set forth below, we conclude a writ of mandate must issue.
After the briefing was complete, the People first applied for permission to file an amicus curiae brief and then moved to intervene. We denied each of these requests in separate orders.
FACTUAL AND PROCEDURAL BACKGROUND
This is not the first time we have issued orders regarding the handling of habeas corpus petition that petitioner, Lawrence Rivera, filed in the trial court many months ago. In fact, on October 14, 2016, we filed an unpublished opinion granting a previous petition by the same petitioner. (Rivera v. Superior Court (Oct. 14, 2016, E066692) [nonpub. opn.] (Rivera I).) From that opinion, we draw the following background facts:
On August 10, 2015, petitioner filed a petition for writ of habeas corpus in the trial court. Respondent was expected to have a ruling on the petition within 60 days of its filing. (Cal. Rules of Court, rule 4.551(a)(3)(A) ["The court must rule on a petition for writ of habeas corpus within 60 days after the petition is filed."].) Instead, on day 79 after the petition was filed, the case was reassigned from Judge Katrina West to Judge Kyle S. Brodie to better balance the court's workload, and Judge Brodie granted respondent an extension of time in which to rule on the petition. His order authorizing this relief gave no reason why respondent needed additional time to rule on the petition for habeas corpus. (Cal. Rules of Court, rule 4.551(h) [a court may extend the time to rule on a petition for habeas corpus, but only "for good cause stated in the order."].) Judge Brodie ordered two more extensions of time for respondent without explanation before finally requesting an informal response on March 14, 2016.
One of these may have been justified by petitioner's filing an amended petition; however, the order did not so state, and in fact gave no reason for the extension.
We note this order was made four days after petitioner filed a "Notice and Request for Ruling," as is authorized when a trial court fails to rule on a petition for habeas corpus within 60 days. (Cal. Rules of Court, rule 4.551(a)(3)(B).) Had respondent acted upon this filing by petitioner, it would have been obligated to have the petition placed on calendar within 30 days of the notice and request for ruling. (Cal. Rules of Court, rule 4.551(a)(3)(B)(ii).) Instead, Judge Brodie filed an April 4, 2016 "finding" explaining that his March 14, 2016 order predated his receipt of petitioner's March 10, 2016 filing, which the court deemed moot due to the order in which Judge Brodie received the notice and request for ruling. Neither the March 14, 2016 order nor the April 4, 2016 "finding" explained why Judge Brodie had no notice of petitioner's March 10, 2016 filing when he filed the order requesting an informal response on March 14, 2016. Also, the order requesting an informal response, again without explanation, gave the People 39 days to respond instead of the usual 15. (Cal. Rules of Court, rule 4.551(b)(2).) --------
Even more delays then occurred for two reasons. First, on June 15, 2016, Judge Brodie issued an order indicating his March 14, 2016 order requesting an informal response "went missing" and had not been served on the People. He ordered the March 14, 2016 and June 15, 2016 orders served on the People, who were to file an informal response by July 11, 2016, and extended the court's deadline to issue a ruling on the petition to August 9, 2016. Second, Judge Brodie's June 15, 2016 order also reassigned the case to Judge West because her "department is administratively well-suited to process writs in a timely manner, and is the appropriate department to hear petitioner's case." This reassignment came 310 days after the petition was filed, 231 days after Judge Brodie first extended respondent's time to rule on the petition on October 28, 2015, and 181 days after the amended petition was filed. The reassignment order expressed a hope that there would be no more "delay [in] giving Petitioner the ruling to which he is entitled."
Meanwhile, on May 3, 2016, petitioner filed a "request for judicial notice" that he had not received an informal response. This document also requested a ruling on the habeas petition. When no response came, petitioner filed a petition for writ of mandate in this court (E066212); while we summarily denied the petition on July 6, 2016, our order added: "The trial court is reminded of its obligation to expeditiously rule on petitions for habeas corpus. (Cal. Rules of Court, rule 4.551(a)(3).)"
Judge Brodie's hope for speedy resolution after reassignment to Judge West did not come to pass. Despite acknowledging receipt of the order requesting an informal response on June 21, 2016 (leaving 20 days to respond by the new deadline of July 11, 2016), the People requested an extension on July 8, 2016. Judge West granted the extension as requested, meaning the People now had until August 15, 2016, to file an informal response. The order granting the extension occurred both four days after the informal response was due and nine days after our reminder that habeas petitions are to be expeditiously processed. The People requested yet another extension of time on August 15, 2016, the date their informal response was due after their July 15, 2016 extension of time. One of the reasons given was that the handling attorney would be on vacation from August 19, 2016, through August 31, 2016. The trial court granted this additional request for an extension on August 16, 2016. This occurred more than a month after our warning to respondent to expedite the case. In addition, the order stated no good cause for continuance.
Petitioner filed his second petition for writ of mandate in this court on August 25, 2016. (Rivera I.) The opinion we issued in Rivera I noted this particular petition for habeas corpus may be longer and have more pages of exhibits than many, but that did not remove respondent's obligation to give petitioner an answer. Although the response in E066692 acknowledged that respondent had until November 3, 2016, to either deny the petition or issue an order to show cause, we indicated concerns about the suboptimal way in which the case had been handled to that point and indicated the response never promised compliance with this deadline. We therefore issued a peremptory writ ordering respondent to either issue an order to show cause or deny the writ petition by November 3, 2016. (Rivera I, supra.)
To summarize, then, by the time the events about which the instant petition complains began, we had warned respondent to expeditiously process the petition there in our denial of the petition in case No. E066212, filed an opinion describing the multiple ways in which respondent's handling of this case was "suboptimal" (Rivera I, supra, at p. 4), and specifically ordered respondent to either issue an order to show cause or deny Rivera's petition. (Id. at pp. 1-4.) Respondent, it appears, chose a hybrid course of its own making.
On October 25, 2016, respondent issued an order to show cause and ordered the People to file a return by November 24, 2016. In lieu of a return, however, the People filed a motion to vacate the order to show cause on November 28, 2016. They asserted this relief was warranted because the petition "is successive and untimely and does not state a prima facie case for relief. Many of its factual claims are speculative and unsupported by independent evidence. Many of its legal contentions are simply incorrect." For these reasons, the People asked the trial court not just to grant the motion to vacate the order to show cause, but to then deny the petition for habeas corpus. They also asked for an extension of the time to file the return to allow respondent to rule on the motion to vacate the order to show cause.
Meanwhile, petitioner filed a blanket opposition to extensions of time to file the return on November 10, 2016, and a request for appointment of an investigator on November 21, 2016. On December 8, 2016, petitioner filed a request for a ruling on the petition because he had not received a return or an application for extension of the deadline to file one. The following day, respondent issued a minute order that denied petitioner's request for a ruling on the petition, ordered the motion to vacate the order to show cause forwarded to petitioner, gave petitioner until January 14, 2017, to oppose that motion, and "provided that [the court] would not rule on the petitioner's request for the appointment of an investigator until it had ruled on the respondent's motion."
Petitioner opposed the motion to vacate the order to show cause on December 16, 2016. On January 6, 2017, respondent granted the motion to vacate the order to show cause. The order doing so found moot the People's request for an extension of time in which to file the response, as well as petitioner's request for appointment of an investigator. Also on January 6, 2017, respondent denied the petition for habeas corpus. It summarized its reasons for doing so as follows: "With regard to all of his claims and subclaims, the petitioner fails to meet his pleading burden because he does not provide any corroboration to support them. His assertions are based on suspicion and speculation. Instead of providing documentary evidence or declarations in support of his claims, the petitioner relies on the possibility that future investigations may support his claims. The petitioner repeatedly asserts that: 'Petitioner hereby alleges, on information based on the record and belief except for information based on personal knowledge, which allege facts that are likely to have evidentiary support after further investigation and discovery.' [Fn. omitted.] However, relief on habeas corpus cannot be given based on a hope or belief that future investigations will eventually support the petitioner's claims. [Citation.] Moreover, the petitioner's claims and subclaims are procedurally barred as untimely or because they could have been raised on appeal."
DISCUSSION
Our order issuing the order to show cause instructed the parties to "discuss under what authority the trial court could vacate the order to show cause hearing in its court once that hearing had been set, as well as whether the trial court appropriately responded to petitioner's request for appointment of an investigator." We now explain why our conclusions regarding these issues requires us to grant the petition and remand for the holding of the previously-issued order to show cause.
First, however, we address one of the arguments respondent makes in the response. According to respondent, we erred in construing the petition filed here as one for mandate; instead, we should be treating petitioner's most recent filing as an original petition for habeas corpus and adjudicate the merits of his claims. Respondent asserts that because it denied petitioner's writ, which order was "final" upon its entry (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1064, fn. 5 (Jackson)), the trial court has no jurisdiction to issue any further orders in response to this court's mandate. In essence respondent claims, despite its clear failure to follow the prior orders of this court, that petitioner has no remedy against it, but is relegated to beginning anew with an original habeas petition directed to this court. We disagree.
We remind respondent that "[t]he law respects form less than substance." (Civ. Code, § 3528.) Consequently, we may disregard the caption of a filing and instead treat it in accordance with the relief it requests. (See, e.g., Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 9 [treating demurrer like motion for summary judgment due to nature of relief requested]; A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1064, ["The substance of the 'motion to quash' is what mattered, not its label"].) As we have described, this court has twice now told respondent, not to issue a particular ruling on the petition filed there, but to process the case to resolution in a procedurally appropriate manner. We read this petition to request the same relief. For example, petitioner's first ground for relief is that the trial court "improperly rejected undisputed allegations . . . in the absence of [a] return, traverse, and evidentiary hearing despite that it initially issued an order to show cause." The bulk of petitioner's handwritten petition discusses not the merits of his claims about the trial, but the handling of the petition for habeas corpus he filed in August 2015. Petitioner makes claims such as: "Had an evidentiary hearing been held, I could have responded to Judge West's disbeliefs by providing the same corroborating evidence to support my claims that she now states in her opinion is absent." Finally, petitioner's prayer for relief appears to be: "For the above reasons, the order to show cause should be reinstated." We therefore construe petitioner to have filed a petition for writ of mandate challenging the granting of the People's motion to vacate the order to show cause.
Respondent's position on its jurisdiction upon issuance of a writ in this case is puzzling given that this court generally only reviews "final" orders and judgments (see, e.g., Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697) and given that the Supreme Court routinely restores jurisdiction to this court on "final" orders when a petition for review is granted. Indeed, the purpose of the remittitur is to restore jurisdiction to the trial court for the purpose of carrying out the orders of the appellate court. (People v. Dutra (2006) 145 Cal.App.4th 1359, 1366.) Under the circumstances of this case, which we trust will remain anomalous, and given that petitioner's challenge here is not to the denial of his habeas petition, we find that no jurisdictional impediment to the respondent court results from our disposition of this petition.
On the merits, the petition is meritorious for the reasons to which we now turn. "The goal . . . of the procedures that govern habeas corpus is to provide a framework in which a court can discover the truth and do justice in timely fashion." (People v. Duvall (1995) 9 Cal.4th 464, 482 (Duvall); see Jackson, supra, 189 Cal.App.4th at p. 1063.) "The issuance of an order to show cause, anticipating the interplay between a return by the People and a traverse by the petitioner, both sets into motion the process by which the issues are framed for judicial determination [citation], and affords the petitioner the opportunity to present additional evidence in support of the truth of the allegations in the petition." (In re Serrano (1995) 10 Cal.4th 447, 456 (Serrano).) For example, a court that has issued an order to show cause retains discretion to allow amendment of the pleading. (Duvall, at p. 482.) "Retention of this power is necessary to ensure that technical and inadvertent pleading errors do not lead to premature dismissals that would frustrate the ends of justice or require holding unnecessary evidentiary hearings that would squander scarce judicial resources." (Ibid.; see Jackson, at pp. 1063-1064 [" 'the well-established rules of habeas corpus procedure provide the superior court with the means of ensuring that the pleadings create a framework in which a court can discover the truth and do justice in a timely fashion.' "].)
From these rules, we infer that a court tasked with adjudicating a petition for habeas corpus must do so in a way that is designed to "discover the truth and do justice." (Duvall, supra, 9 Cal.4th at p. 482; see Jackson, supra, 189 Cal.App.4th at p. 1063-1064.) For example, the Duvall court found it was error for a Court of Appeal to construe a return so technically as to find that it disputed no facts, thereby justifying granting a petition for habeas corpus without an evidentiary hearing and in effect by default. (Duvall, at pp. 473, 482-483, 486 ["Court of Appeal should have appointed a referee to hold an evidentiary hearing to determine the truth or falsity of petitioner's . . . factual allegations regarding counsel's failure to investigate and present a defense . . . ."].) In Serrano, the court held that determinations about the petitioner's credibility should not be made without an evidentiary hearing in the absence of a return and traverse. (Serrano, supra, 10 Cal.4th at p. 456; see Id. at p. 457 ["Without an evidentiary hearing, however, petitioner was unable to provide the court with additional evidence tending to show the truth of his allegations. Had an evidentiary hearing been held, petitioner could have responded to the Court of Appeal's disbelief concerning his attempts to call his attorneys."].)
Here, the trial court issued an order to show cause, meaning it found that petitioner stated a prima facie case for relief. (Duvall, supra, 9 Cal.4th at p. 475 ["Issuance of an OSC signifies the court's preliminary determination that the petitioner has pleaded sufficient facts that, if true, would entitle him to relief."].) Because the issuance of an order to show cause made it "reasonably foreseeable that an evidentiary hearing may be held in the near future," petitioner moved for appointment of an investigator to interview witnesses and obtain information that may be necessary to support the traverse. Rather than using the " 'the well-established rules of habeas corpus procedure' " (Jackson, supra, 189 Cal.App.4th at p. 1063) to further the seeking of truth, respondent vacated the order to show cause on a motion brought with no statutory authorization and, to our knowledge, no precedent in the reported cases.
We caution that we do not mean to imply that a court, having issued an order to show cause, may never rescind or alter that order. We do find, however, that a court wishing to depart from the procedures developed to assist trial courts in ascertaining the truth on habeas petitions should have a solid basis for making that decision. We reverse the order the trial court made here because we find such a basis is lacking.
The parties disagree extensively about whether Code of Civil Procedure section 1008, which governs motions for reconsideration in civil cases, applies to habeas corpus proceedings, which are special proceedings that are in some ways criminal and in some ways civil in nature. (See In re Scott (2003) 29 Cal.4th 783, 815, fn. 6.) We need not and therefore do not decide this apparent question of first impression. Whether the precise strictures of Code of Civil Procedure section 1008 govern, or whether, as respondent contends, a trial court in a habeas proceeding has freer rein to reconsider its rulings, we would still review the ruling for abuse of discretion. (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 42 ["We review the denial of a motion under section 1008 for abuse of discretion"]; Jackson, supra, 189 Cal.App.4th at p. 1068 [court required to " 'exercise due consideration' " when exercising broad ability to reconsider rulings in criminal cases].) To survive review under the deferential abuse of discretion standard, the court's decision must " 'be guided by fixed legal principles and exercised in such a manner as to accomplish substantial justice in the light of all the facts and circumstances.' "(Palomar Mortg. Co. v. Lister (1963) 212 Cal.App.2d 236, 239.) Here, this standard was not met.
Code of Civil Procedure section 1008, subdivision (a), explicitly requires that a motion for reconsideration under the statute be based on "new or different facts, circumstances, or law." Similarly, the court in Jackson, on which respondent relies almost exclusively for its argument that it had inherent authority to vacate the order to show cause, also noted that the moving party there had presented evidence it did not have before the court's prior ruling. (Jackson, supra, 189 Cal.App.4th at p. 1068; see People v. Castello (1998) 65 Cal.App.4th 1242, 1250 [party opposing reconsideration conceded the moving party had presented "new authorities"].) Here, the same is not true. The trial court granted the motion to vacate the order to show cause and then denied the petition based on a number of procedural rules that were as available to the court and as applicable to the petition at the time of the order vacating the order to show cause as they were at the time the order to show cause was set. Respondent even explained, "It should be noted that if the respondent had not brought the Motion to Vacate Order to Show Cause, this court would have been compelled to vacate the Order to Show Cause on its own accord for the same reasons that the court grants the respondent's motion." Nowhere does respondent explain why, if the procedural rules it invoked to grant the motion to vacate and to deny the petition were sufficient to justify those rulings, it had ever seemed like petitioner stated a prima facie case. " 'In [the court's] discretion' . . . is not the equivalent of 'if it wants to' or 'if it feels like it.' " (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394.) Here, the court's decision strays too far away from this principle, as it is unsupported by any rule we can divine.
Complicating matters further, at the time respondent granted the People's motion to vacate the order to show cause, petitioner was requesting permission to appoint an investigator to obtain evidence supporting his claims. Yet, the order denying the petition repeatedly indicates that certain of petitioner's claims fail because they are not supported by documentary evidence. For example, the trial court had the following response to petitioner's allegation that the prosecutor and the trial judge were involved in an inappropriate romantic and/or sexual relationship: "If true, this basis alone would require granting [the petition]. However this claim is supported merely by suspicion, speculation, and alleged gossip."
In other words, petitioner was told he had stated a prima facie case and was given an opportunity to present evidence regarding his claims at a hearing, he did what he could from prison to obtain such information, and then the trial court changed course and denied the petition, at least in part, precisely because petitioner lacked the evidence he was trying to obtain. We need not, and again therefore do not, attempt to plumb the depths of what due process or other rights petitioner may have acquired and the extent to which they may have been abridged. Instead, we find only that respondent's act of penalizing petitioner for lacking documentary evidence while simultaneously refusing to rule on the request for an investigator who could have obtained such evidence further supports our conclusion that the trial court abused its discretion in vacating the order to show cause.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order denying the petition for writ of habeas corpus and to reissue the order to show cause it previously issued on the petition. Respondent is also to rule on petitioner's request for appointment of an investigator with the understanding that an order to show cause has issued.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. McKINSTER
J.