Filed 05/15/2017




                              CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                       DIVISION THREE




In re DONTA LAMONT CAMPBELL                            G052575

    on Habeas Corpus.                                  (Super. Ct. No. 12WF0369)

                                                       OPINION


                   Appeal from an order of the Superior Court of Orange County, Kazuharu
Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.
                   Tony Rackauckas, District Attorney, David R. Gallivan, Deputy District
Attorney, for Plaintiff and Appellant.
                   Paul J. Katz, under appointment by the Court of Appeal, for Defendant and
Respondent.
                   The Orange County District Attorney (OCDA) appeals from the trial
court‟s order granting Donta Lamont Campbell‟s petition for writ of habeas corpus. The
OCDA argues the following: the court erred by granting the habeas petition without first
issuing an order to show cause (OSC); Campbell was not in custody on his prior
                                                                     1
convictions; and Proposition 47 did not apply to prior prison terms. Because we agree
the trial court erred by granting relief without first issuing an OSC, we need not address
the OCDA‟s other contentions. We reverse the court‟s order granting Campbell‟s
petition for writ of habeas corpus.
                                          FACTS
              In September 2012, a jury in Orange County Superior Court (OCSC) case
No. 12WF0369 convicted Campbell of possession of cocaine base for sale (Health & Saf.
Code, § 11351.5), five counts of transportation of controlled substances (Health & Saf.
Code, § 11352, subd. (a)), and misdemeanor possession of a controlled substance without
a prescription (Bus. & Prof. Code, § 4060). Later, Campbell admitted he suffered seven
prior prison terms (Pen. Code, § 667.5, subd. (b)), including as relevant here the
following six OCSC cases that were for violating Health and Safety Code section 11390,
subdivision (a): 00CF1529; 01CF2618; 03CF3299; 05HF2234; 08CF2020; and
09CF2914 (collectively referred to as the six prior felony convictions).
              In November 2012, the trial court sentenced Campbell to 11 years in jail as
follows: four years on count 4 and seven consecutive one-year terms for the prior prison
term allegations. The sentences on the remaining counts were concurrent or stayed
terms. This court affirmed his convictions. (People v. Campbell (May 27, 2014,
G047708) [nonpub. opn.].)
              In November 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act (Proposition 47), which made certain drug- and



1
             This issue is currently pending before the California Supreme Court in
People v. Valenzuela (2016) 244 Cal.App.4th 692 (Valenzuela), review granted March
30, 2016, S232900.

                                             2
theft-related offenses misdemeanors, unless the defendant was ineligible (People v.
Rivera (2015) 233 Cal.App.4th 1085, 1089; Pen. Code, § 1170.18). Campbell filed a
Proposition 47 application. In April 2015, Campbell‟s six prior felony convictions were
designated misdemeanors.
             In June 2015, Campbell filed a petition for resentencing pursuant to Penal
Code section 1170.18, subdivision (a), because his current sentence included six one-year
terms for convictions that were no longer felonies. Later that month, Campbell filed a
petition for writ of habeas corpus. The petition was a one-page form titled, “For
Proposition 47 Resentencing Only.”
             On the afternoon of July 13, 2015, there was a hearing before Judge Gassia
Apkarian. Deputy district attorney (DDA) Nicole Nicholson and Assistant Public
Defender (APD) Mark Brown appeared. When Judge Apkarian asked Brown to explain
the purpose of the hearing, Brown stated it was “a fairly long process.” He explained
“we” had meetings, in person and by e-mail, with the OCSC to develop an expedited
habeas procedure to grant relief to Campbell and others under Proposition 47. Brown
stated the OCDA did not object to the expedited habeas procedure during any of those
meetings. He added the OCSC revised its rules and drafted its own habeas petition,
which it posted on its website. Brown said that while talking to DDA Nicholson off the
record, he was then aware the OCDA was opposed to Campbell‟s habeas petition both
substantively and procedurally. Brown stated that had he known the OCDA was opposed
to the expedited habeas procedure, he would not have waited two months while the
OCSC developed it. Brown stated he would have filed “a regular habeas petition” and
Campbell would not have unnecessarily spent two months in custody. Brown requested
Judge Apkarian grant Campbell‟s habeas petition.
             DDA Nicholson opposed granting the habeas petition. Nicholson stated
she similarly objected to granting the habeas petition at a hearing before Judge Kazuharu



                                            3
                               2
Makino earlier that morning. She stated the following: “There [was] no express
acceptance of these petitions. We were present at a meeting, we received e-mails, we had
our law and motion department working on those, we are opposed to this.” She asked for
one week to file a response.
               Judge Apkarian explained the process by which the OCSC and counsel
developed the expedited habeas procedure for Proposition 47 cases. She said the
following: “Just to sum up, two months ago there was a meeting, about two months ago
there was a meeting where the representatives of the Public Defender‟s office, the
[OCDA‟s] office, the Alternate Public Defender‟s office, court staff, and three judges
were present. The discussion was to come up with a method in order to have these
habeas, these petitions, for writ of habeas corpus heard expeditiously. . . . [¶] . . . [¶] At
the time of the meeting, objections were not made by the [OCDA]. Subsequently when
Judge [Jonathan] Fish was circulating e-mails and samples for these forms, the [OCDA‟s]
office was privy to all of these e-mails, so was I, there were no objections made in
writing, telephonically, orally, verbally, we have never heard of any objections until
today, when Judge Makino informed me that in fact the [OCDA] [was] now objecting to
the entire petition.”
               DDA Nicholson replied as follows: “Well, the [OCDA] are objecting to
the substantive -- we are objecting and opposing it, and Judge Makino informed me if we
are objecting substantially, we are objecting to the vehicle that moves us into court.”
When Judge Apkarian asked whether the OCDA was objecting on both substantive and
procedural grounds, Nicholson responded, “Yes.” Judge Apkarian added, “So technically




2
              At the hearing, after DDA Nicholson objected to Campbell‟s petition for
resentencing, APD Brown withdrew the motion. Nicholson also objected to the habeas
petition. Judge Makino transferred the habeas petition to Judge Apkarian for that
afternoon.

                                               4
you are not opposed to the vehicle, you are opposed to the substance behind the vehicle.”
Nicholson said, “Yes.”
              To clarify the record, APD Brown asserted everyone agreed to the
expedited habeas procedure because “there was no objection to the ultimate answer[]”
and the only issue was “how do we get there.” Brown added that although the OCDA
certainly had the right to change its position on the substantive law, two months earlier
the OCDA agreed to the expedited habeas procedure.
              DDA Nicholson stated the following: “And once again the record will be
clear we did not technically agree to the procedure, we didn‟t oppose it, we didn‟t agree
to it, it was a vehicle for these cases to come before the judge who is handling
[Proposition] 47, and allow us an opportunity to be heard.”
              When Judge Apkarian stated the OCDA was “holding” its objection until
one of the habeas petitions was filed and now the OCDA had changed its position on the
substantive law, DDA Nicholson replied as follows: “I don‟t think that‟s accurate, your
honor, with all due respect. I don‟t think there was actually truly a position that was
taken. It was there was a discussion of how these cases would come before the court, and
at that time we would then make our position heard at that time.” Judge Apkarian
continued the matter one week to allow the OCDA to file an informal response.
              Three days later, the OCDA filed an informal response. Four days later,
Campbell filed points and authorities in support of his habeas petition.
              On July 23, 2015, there was a hearing before Judge Makino. DDA David
                                                           3
R. Gallivan, DDA Nicholson, and APD Brown appeared. After Brown stated the OCSC
created and published an expedited habeas procedure for Proposition 47 cases, Judge
Makino stated it was his understanding the “procedure was agreed to” but it now

3
              Judge Makino noted there were 11 similarly situated defendants, and DDA
Dominic Bello and two other deputy public defenders appeared. Judge Makino stated his
ruling on the procedural issue applied to all similarly situated defendants.

                                             5
appeared the OCDA objected and the issue before him was whether there was an
agreement or whether the OCDA‟s objection was waived. After Judge Makino said he
was not involved in adopting the expedited habeas procedure and did not know whether
“they were court-ordered procedures,” Brown provided a detailed history of how the
procedure developed.
             APD Brown stated there was one in-person meeting where Judge Fish,
Judge Apkarian, Judge Douglas J. Hatchimonji, OCSC clerks, OCDA representatives,
Alternate Defender Derek Bercher, and Brown were present. He stated the judges agreed
these defendants were entitled to relief and although he did not remember whether the
OCDA representatives agreed, they certainly did not object. He said Judge Hatchimonji
suggested “some sort of a habeas petition[]” and people focused on developing an
expedited procedure.
             APD Brown stated “there was approximately a two-month process” where
Judge Fish, doing “the lion‟s share of the work[]” worked with the OCSC rules
committee and developed an expedited habeas procedure. Brown stated that at some
point Judge Fish sent an e-mail to the group apologizing for the delay but said he wanted
to develop an expedited habeas procedure for all similarly situated defendants to use
regardless of who represented them. Brown said that based on a form habeas petition he
provided to the court, Judge Fish drafted and circulated by e-mail a form expedited
petition for writ of habeas corpus and no one objected. Brown added that because no one
objected, Judge Fish sent an e-mail stating, “we are now a go[]” and posted the form
habeas petition and rules on the OCSC website.
             APD Brown stated he drafted a proposed order and distributed it to the
group by e-mail and no one objected. He added the rules required defendants to give
10-days‟ notice, but the OCDA did not object to the procedure until the matter was set on
calendar.



                                            6
              DDA Nicholson responded as follows: “I was present at my first and only
meeting where this was brought up by the defense. I never engaged in those discussions.
I didn‟t agree, I didn‟t oppose. I absorbed the information. I waited to have a day in
court to litigate this matter and to bring a representative from my office from law and
motion to address it. [¶] There were several e-mails that went back and forth. I never
expressly agreed; I also didn‟t oppose. It was my impression that I would be allowed an
opportunity to discuss and object appropriately when this was actually brought before the
court in this department. [¶] And if it was a misunderstanding that we were waiving,
then that‟s a misunderstanding. But there‟s nothing that I have ever said that, yes, I agree
to this. And I never said that in the meeting, and I never said it in an e[-]mail.”
              When Judge Makino attempted to clarify whether her position was she was
waiting until the court hearing to raise objections to the expedited habeas procedure,
DDA Nicholson replied the following: “If we had any, yes. I was going to address that
with my law [and] motion department.” Judge Makino asked whether she said that to
anyone, and Nicholson answered as follows: “No. We were going to do that when it
came to court and address at that time with my law [and] motion person present on the
record in court to address any concerns we had on merit or procedure. I never waived or
agreed to it at any point.”
              Judge Makino asked DDA Nicholson whether she was aware the group was
creating a habeas petition and expedited process, she agreed she saw the e-mails and the
documents. When he said she did not answer the question, Nicholson replied as follows:
“There was a procedure that they were discussing with the court on how they‟re going to
get these cases in before a judge in this courtroom doing [Proposition] 47. I saw those
petitions. I never agreed to it; I never opposed it.” When asked, she repeated she was
going to let someone from the law and motion department raise any objections in court.




                                              7
              When Judge Makino asked DDA Gallivan whether “there [was] an
objection to the form used to bring this petition for writ of habeas corpus[]” the following
colloquy occurred:
              “[DDA Gallivan]: No, not to the form. We did have an off-the-record
discussion prior to this. I think based on the meetings, I think the way it‟s been brought
before the court, we do not object to the form of it. [¶] But we‟re asking the court -- . . .
Brown cited that new rules were promulgated as to how that form would then be litigated.
I haven‟t seen those rules. I went on the judicial website or the [OCSC] website. Those
rules are not online. I don‟t know where those new rules are, how we litigate these
habeas petitions. And the form that the Public Defender is using is not the form that‟s on
the website that was approved by the [OCSC].
              “[Judge Makino]: I didn‟t even know there was a form on the website. So
I don‟t know what the difference is between the forms. [¶] Do you have an objection to
the forms that are being used by the Public Defender in these writs that are pending right
now?
              “[DDA Gallivan]: At this time, no. At any time. I‟m not objecting to the
form. My concern is the process moving forward from the form.
              “[Judge Makino]: Okay. So any procedural objections to the use of this
form you‟re waiving.
              “[DDA Gallivan]: Only strictly to the use of this form. Correct.
              “[Judge Makino]: Okay. You waive such as there‟s no points and
authorities; there are no facts other than what is set out in those forms. So any -- there‟s
going to be no claim of any deficiency in the facts that are set forth. There‟s going to be
no claim that there‟s a lack of authority set forth.
              “[DDA Gallivan]: No. We would be challenging that. We‟re just not
objecting to the form they used.



                                               8
               “[Judge Makino]: Well, part of the form was that none of that was
required. You‟re saying it‟s okay to use the form but the information provided on the
form is deficient.
               “[DDA Gallivan]: Deficient in the sense I don‟t think it gives the court
enough information to grant the relief asked for. If they want to use a form that this court
accepts, and it doesn‟t set forth enough information to convince this court to grant the
relief, then I‟m certainly going to object to that form.
                “[Judge Makino]: Okay. To me it sounds like you are objecting because
you‟re going to say, well, the form sets forth insufficient facts so that the court should
just deny it on its face without any further hearing necessary on the merits of whether or
not people in this circumstance are allowed any relief because there‟s not sufficient facts
or authority set forth in the original petition.
               “[DDA Gallivan]: But if the court was inclined -- if the court is inclined to
find that we conceded the issue as to the form, that‟s why we provided substantive
argument. We think it should be done on [a] substantive claim as well.
               “[Judge Makino]: Here‟s what I don‟t want. I don‟t want someone to say,
oh, we agree to this form, but by the way, if they win, we‟re going to say the information
in the form is insufficient.
               “[DDA Gallivan]: I understand.
               “[Judge Makino]: Okay. So that‟s what I‟m trying to find out. I mean is
your position use of this form provides insufficient information to grant relief?
               “[DDA Gallivan]: Then my answer is yes.
               “[Judge Makino]: Okay. Well, then the form is not going to work because
the form obviously does not comply with the requirements of a writ of habeas corpus in
the traditional formal understanding of what a writ of habeas corpus is.




                                                   9
              “[DDA Gallivan]: And the reason we‟re here is if the court had found that I
forfeited my ability to make that objection, then we were prepared to go on the merits.
But we are objecting to the form.
              “[Judge Makino]: Okay. Well, . . . Brown, what do you want to do?
Because if you win, they‟re going to say, okay, the petitions were not sufficient on their
face, they should have been summarily denied. So if you win, you‟re going to face that
issue upon any appellate review.
              “[APD Brown]: I‟m prepared to face that issue on appellate review
because I did comply with the court‟s procedures.
              “[Judge Makino]: Okay. Well, I understand you complied. But any court
of appeal can say the court had no authority to require or impose on any party a waiver of
the requirements on a writ of habeas corpus. So even if it‟s court ordered, I don‟t think
that would solve that problem. [¶] So if a party doesn‟t waive it, I don‟t think the court
could basically order a waiver. So but if you want -- if you‟re satisfied with it and you‟re
willing to face it on appeal, I don‟t have a problem with that.
              “[APD Brown]: I‟m satisfied and willing to face it on appeal.”
              There was a discussion about incorporating by reference Campbell‟s points
and authorities to the other 11 cases. DDA Gallivan objected “because we‟re still
objecting on procedural grounds before we get to the substantive.” After defense counsel
for the other defendants indicated they wanted to file a new writ, and Judge Makino said
that would trigger the 10-day rule, Gallivan inquired where the 10-day rule was posted.
APD Brown replied, “It was in an e[-]mail sent to . . . [DDA] Nicholson.” Nicholson
said, “And it wasn‟t agreed to or opposed either.” After brief argument, Gallivan
withdrew his objection and stipulated to the proposed incorporation by reference.
              Judge Makino ruled Campbell and others were entitled to relief because
under Proposition 47 any felony conviction that is designated as a misdemeanor is “a
misdemeanor for all purposes,” although it was “a very close call.” DDA Gallivan

                                             10
objected Judge Makino did not address the OCDA‟s procedural objection, and Judge
Makino stated defendants said they were willing to risk reversal on appeal. After
Gallivan stated there were other issues that could have been briefed had the trial court
issued an OSC, Judge Makino disagreed opining the one legal issue was clear. Gallivan
stated he would have preferred to present his argument in a return after issuance of an
OSC. Judge Makino replied, “That would probably be true had this whole procedure not
been agreed to because in my view, the whole procedure basically excluded an OSC.”
When Gallivan asked whether Judge Makino was finding the OCDA agreed to the
expedited habeas procedure, Judge Makino responded, “You waived any defects --.”
Gallivan said, “No, we didn‟t.”
              Judge Makino explained the OCDA waived any defects regarding “using
the form[]” and it would have to argue before the appellate court whether that included
waiving any defects to the OSC requirement. DDA Gallivan stated that although he
initially did not object to the habeas form, he did ultimately object to it and he wanted his
objection to be clear. Judge Makino said he would have to review the record. Gallivan
contended he wanted it to be clear he objected to the habeas form and the expedited
process. He asserted Judge Makino was required to rule on the procedural argument and
he could not rule on the substantive argument “because the [OCDA has] never been
ordered to show cause.”
              After DDA Gallivan disputed the OCDA waived any objection concerning
the expedited habeas procedure, the following colloquy occurred:
              “[Judge Makino]: Well, I think you‟re going to have to discuss that with
the Court of Appeal based on what the record is in here about what you said before the
ruling was made because once a ruling is made, all these arguments make no difference.
The ruling has been made.
              “[DDA Gallivan]: Is the court -- then I guess I‟m asking the court what is
the court‟s ruling on the procedural aspects of any objections?

                                             11
              “[Judge Makino]: I have no further ruling.
              “[DDA Gallivan]: I don‟t believe the court has made a ruling, frankly, on
the procedural aspects.
              “[Judge Makino]: Okay. Well, I don‟t think I have to make a ruling. So
you can take that up with the Court of Appeal.
              “[DDA Gallivan]: If the court doesn‟t make a ruling, how can the Court of
Appeal review the lack of a ruling?
              “[Judge Makino]: Well, I think you have to ask them. Okay? That‟s it.”
              After a short discussion regarding the appropriate order, DDA Gallivan
contended the appropriate remedy was resentencing and not a reduction. Judge Makino
disagreed, explaining he was ruling on a habeas petition and not a Proposition 47 petition.
When Gallivan continued to object, Judge Makino said he could also take that up with the
Court of Appeal.
              In a written order the same day, the trial court granted Campbell‟s habeas
petition, vacating the one-year sentences on Campbell‟s six prior felony convictions. The
court ordered his recalculated sentence was five years.
              At a hearing in a related case on August 3, 2015, DDA Bello voiced his
numerous objections to the expedited habeas procedure, including that Judge Makino
                                           4
could grant relief without issuing an OSC. Before he granted the petition, Judge Makino
stated, “Well, the procedural aspects, as before in the other writs, I consider them
waived.” (Italics added.)




4
               In an order dated June 17, 2016, this court granted Campbell‟s request for
judicial notice of the reporter‟s transcript of the proceedings on August 3, 2015, in OCSC
case No. 12CF0271.


                                               12
                                       DISCUSSION
              “As a general matter, we review the grant of a writ of habeas corpus by
applying the substantial evidence test to pure questions of fact and de novo review to
questions of law. [Citation.] „[W]hen the application of law to fact is predominantly
legal, such as when it implicates constitutional rights and the exercise of judgment about
the values underlying legal principles, [the appellate] court‟s review is de novo.‟
[Citation.]” (In re Taylor (2015) 60 Cal.4th 1019, 1035.)
I. Order to Show Cause
              A petition for a writ of habeas corpus is “largely procedural,” requiring the
court to determine whether the petition states a prima facie case for relief and whether the
claims are procedurally barred. (People v. Romero (1994) 8 Cal.4th 728, 737-738
(Romero).) The court may request the custodian or real party in interest to file an
informal response. (Id. at p. 737.) If the petition states a prima facie case on a claim that
is not procedurally barred, appellate courts, because of practical realities, order the
custodian to show cause, which directs the custodian to file a return explaining why the
court should not grant relief. (Id. at p. 738.) After the custodian files the return, the
“„principal pleading,‟” the petitioner files a traverse. (Id. at p. 738.) “[T]hrough the
return and the traverse . . . the issues are joined in a habeas corpus proceeding.
[Citations.]” (Ibid.)
              “[A]n [OSC] is an intermediate but nonetheless vital step in the process of
determining whether the court should grant the affirmative relief that the petitioner has
requested.” (Romero, supra, 8 Cal.4th at p. 740.) The OSC creates a “„cause‟” and
frames the issues. (Ibid.) “As the means by which a judicial proceeding is instituted, the
issuance of the . . . [OSC] is mandatory, not optional.” (Ibid., italics added; Cal. Rules of
Court, rule 4.551(c).) If the habeas petition makes a prima facie case for relief, “„the
opposing side must be given an opportunity to file a return to the petition.‟” (Romero,
supra, 8 Cal.4th at p. 740, fn. omitted.)

                                              13
              However, “[t]he right to file a return in a habeas corpus proceeding is
subject to waiver.” (Romero, supra, 8 Cal.4th at p. 740, fn. 7, italics added.) If the right
to file a return is waived, the court may grant relief without issuing an OSC. (Ibid.)
A. Waiver
              In its opening brief, the OCDA argues the trial court erred by granting relief
without first issuing an OSC. Nowhere does the OCDA mention waiver of this
requirement. After Campbell contends both waiver and equitable estoppel apply, the
OCDA replies it did not forfeit the right to file a return because it objected to the
expedited habeas procedure before Judges Apkarian and Makino. But the OCDA
nowhere justifies its conduct during the two months the group developed the expedited
habeas procedure or explains how its conduct did not amount to a waiver. Despite its
lackluster effort, we conclude the OCDA must prevail on this point.
              In Romero, when the court discussed waiver of the right to file a return, the
California Supreme Court stated as follows: “The right to file a return in a habeas corpus
proceeding is subject to waiver. Upon being served with a copy of the petition, or upon
receiving a request from the court for informal opposition under rule 60 of the California
Rules of Court, the petitioner‟s custodian may stipulate to the truth of the petition‟s
allegations and to the requested relief. Should this occur, the court in which the habeas
corpus petition is pending may grant relief without issuing a writ of habeas corpus or an
order to show cause.” (Romero, supra, 8 Cal.4th at p. 740, fn. 7, italics added.)
              While forfeiture is the failure to make the timely assertion of a known right,
“waiver” is the “„intentional relinquishment or abandonment of a known right.‟” (United
States v. Olano (1993) 507 U.S. 725, 733; People v. McKinnon (2011) 52 Cal.4th 610,
636, fn. 16; People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.) The issue of a waiver
is generally a question of fact, and thus, we review the trial court‟s ruling to determine
whether it is supported by substantial evidence. (Engalla v. Permanente Medical Group,
Inc. (1997) 15 Cal.4th 951, 983.)

                                              14
              There is no dispute that neither Judge Apkarian nor Judge Makino issued an
OSC. The issue was whether the OCDA waived the right to file a return. In re Olson
(2007) 149 Cal.App.4th 790 (Olson), is instructive, although unfortunately neither party
discuss it.
              In Olson, the superior court granted the relief requested in petitioner‟s
habeas petition without issuing an OSC or a writ, and without ordering the filing of a
return. (Olson, supra, 149 Cal.App.4th at pp. 794, 799.) On appeal, petitioner argued the
People‟s failure to object to the procedure followed by the superior court constituted a
forfeiture of the contention on appeal, particularly because the superior court had sought
informal responses from the parties, indicating it was contemplating issuing the requested
relief. (Id. at p. 801.) The Olson court rejected this argument, stating the following:
“[T]here was no stipulation relieving the superior court of its duty to issue the OSC or the
writ. Nor did the [People‟s] failure to object amount to the stipulation referred to in
Romero.” (Id. at p. 802.) The same is true here.
              Here, the record includes no evidence the OCDA stipulated that it waived
the right to file a return and thus relieved the trial court from issuing an OSC.
Additionally, DDA Nicholson‟s silence during the two-month long process whereby the
group develop the expedited habeas procedure did not amount to the stipulation referred
to in Romero. Campbell, more than the OCDA, spends considerable time discussing
whether the OCDA objected to the expedited habeas procedure at the July 23, 2015,
hearing before Judge Makino. When DDA Gallivan‟s comments are read in their
entirety, we conclude he objected to both the revised “petition for writ of habeas corpus”
form and the expedited habeas procedure that eliminated the need for an OSC. But even
had he not objected, his silence during that hearing did not constitute a stipulation
pursuant to Romero and Olson, similar to the fact Nicholson‟s silence during the two
months before the hearing did not constitute a stipulation pursuant to Romero and Olson.



                                             15
              Campbell relies on People v. Whitson (1998) 17 Cal.4th 229, 246-248, a
case concerning whether there was an implied waiver of defendant‟s rights pursuant to
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), to assert a waiver can be implied
here. We think Campbell‟s analogy to Miranda is inapt because a waiver by implication
is not tantamount to a stipulation.
               A “stipulation” is “[a] voluntary agreement between opposing parties
concerning some relevant point; esp., an agreement relating to a proceeding, made by
attorneys representing adverse parties to the proceeding.” (Black‟s Law Dict. (10th ed.
2014) p. 1641, col. 1.) An “implied waiver” is “[a] waiver evidenced by a party‟s
decisive, unequivocal conduct reasonably inferring the intent to waive.” (Black‟s Law
Dict. (10th ed. 2014) p. 1813, col. 2, italics added.)
              A stipulation requires mutual assent between the parties concerning rights
and duties whereas an implied waiver requires only a reasonable inference based on a
party‟s conduct. Because an implied waiver is based on an inference, a logical leap from
other facts to the conclusion, it is not the equivalent of a stipulation, an intentional
agreement limited to its terms. Pursuant to Romero and Olson, an implied waiver is
insufficient to convey to the trial court the party does not intend to file a return and agrees
to dispense with the OSC requirement. The OCDA‟s participation in the two-month long
process and failure to object, although not ideal, was not tantamount to the stipulation
required by Romero.
B. Estoppel
              In his respondent‟s brief, Campbell contends the OCDA was equitably
estopped from contesting the expedited habeas procedure. “The fundamental rule that a
reviewing court does not consider arguments or theories that could have been but were
not raised below „is especially applicable to the doctrine of estoppel, which includes
factual elements that must be established in the trial court. [Citation.]‟ [Citation.]”
(Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 490, fn. 6.)

                                              16
              Here, Campbell points to no place in the record, and we found none, that
demonstrates he raised the issue of equitable estoppel below. The OCDA does not
address this claim procedurally or on the merits. Judge Makino‟s comments at both the
July 23, 2015, and August 3, 2015, hearings make clear his procedural ruling was based
solely on waiver and not equitable estoppel. We will not address arguments raised for the
first time on appeal. (People v. Williams (1997) 16 Cal.4th 153, 250; Ehrlich v. City of
Culver City (1996) 12 Cal.4th 854, 865, fn. 4.) Because Campbell did not argue
equitable estoppel below, we decline his invitation to conclude the OCDA was equitably
estopped from objecting to the expedited habeas procedure on the limited record before
us. On remand, the parties may litigate the issue of equitable estoppel.
C. Pure Question of Law
              Campbell also asserts that because the issue of whether Proposition 47
applied retroactively was a pure legal question, there were no factual disputes and an
OSC was unnecessary. It is true the OSC‟s function is to initiate a proceeding where
factual issues are framed and decided. (Romero, supra, 8 Cal.4th at p. 740.) It is also
true that at the July 23, 2015, hearing before Judge Makino, DDA Gallivan stated he was
not going to present any evidence at the hearing on these writs. However, the OSC also
“creates a „cause,‟ thereby triggering the state constitutional requirement that the cause be
resolved „in writing with reasons stated‟ [citations].” (Romero, supra, 8 Cal.4th at
p. 740.) Because Judge Makino did not issue an OSC, there was no legal issue, or cause,
before him. Thus, his order vacating the one-year sentences on Campbell‟s six prior
felony convictions is a nullity.
D. Final Thoughts
              Although we conclude the trial court erred by failing to issue an OSC,
which would have instituted the proceeding, framed the factual issues, and created the
cause (Romero, supra, 8 Cal.4th at p. 740), we conclude the OCDA could have done a
better job of either participating in developing the expedited habeas procedure or voicing

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its objections early in the process. It is not clear from the limited record before us the
extent of this two-month long process to develop the expedited habeas procedure. APD
Brown admitted to Judge Makino there was only one in-person meeting and everything
else was done by e-mail.
              What was the result of the one in-person meeting? Were the expedited
habeas procedure and revised “petition for writ of habeas corpus” form distributed via
e-mail and agreed to by all parties? Did the OCSC post the form and the expedited
habeas procedure on its website? The record includes no “evidence” to answer these
questions, only counsels‟ recollections.
              It is not our role to instruct counsel on policy or how to litigate cases. The
better practice though may have been for the OCDA to have someone from the law and
motion department participate from the outset in the process to develop the expedited
habeas procedure or immediately object. It is also not our role to advise the trial court on
the inherent risk of relying on counsel‟s silence. We understand Judge Makino‟s
frustration with the OCDA‟s failure to voice any objection during the lengthy process to
develop the expedited habeas procedure but silence does not amount to a stipulation.
Almost two years later, 16 defendants are now in limbo and some are faced with the
prospect of returning to custody. And the OCSC is faced with expending additional time
and resources on this issue.
              “Pursuant to Romero, we conclude that there are no facts, issues or cause
before us. The superior court‟s order[] [is] a nullity in the absence of the issuance of an
OSC . . . and in the absence of the filing of a return. Accordingly, we reverse the superior
court‟s order[] and remand the matter to the superior court so that it can reconsider the
petition in conformity with the decisions in Romero, supra, 8 Cal.4th 728 . . . .” (Olson,
supra, 149 Cal.App.4th at p. 802.)
              Because we agree the trial court erred by granting relief without first
issuing an OSC, we need not address whether Campbell was in custody on his prior

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convictions and whether Proposition 47 applies to prior prison terms. We reverse the
court‟s order granting Campbell‟s petition for writ of habeas corpus.
                                     DISPOSITION
             The order is reversed and the matter is remanded.



                                                 ___________________________
                                                 O‟LEARY, P. J.

WE CONCUR:


___________________________
MOORE, J.


___________________________
IKOLA, J.




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