                         TO BE PUBLISHED IN THE OFFICIAL REPORTS


                              OFFICE OF THE ATTORNEY GENERAL

                                        State of California


                                        DANIEL E. LUNGREN

                                          Attorney General


                            ______________________________________

                   OPINION              :
                                        :          No. 95-706
                   of                   :
                                        :          March 20, 1996
          DANIEL E. LUNGREN             :
            Attorney General            :
                                        :
          MAXINE P. CUTLER              :
         Deputy Attorney General        :
                                        :
______________________________________________________________________________

           THE HONORABLE GARY T. YANCEY, CONTRA COSTA COUNTY DISTRICT
ATTORNEY, has requested an opinion on the following question:

                 Does the appellate department of a superior court have jurisdiction to rule upon a
petition for a writ of habeas corpus relating to and in conjunction with an appeal from a municipal court
misdemeanor conviction?

                                            CONCLUSION

                 The appellate department of a superior court does not have jurisdiction to rule upon a
petition for a writ of habeas corpus relating to and in conjunction with an appeal from a municipal court
misdemeanor conviction.

                                              ANALYSIS

                The question presented for analysis concerns the authority of the appellate department
of a superior court to consider a petition for a writ of habeas corpus that relates to a pending
misdemeanor appeal filed by the writ petitioner. We conclude that an appellate department of a
superior court lacks jurisdiction to consider a habeas corpus petition even if it relates to an appeal
pending before it.




                                                   1.                                            95-706

                   1.        Habeas Corpus Proceedings in a Superior Court

                   Section 10 of article VI of the Constitution provides in relevant part:

                  "The Supreme Court, courts of appeal, superior courts, and their judges have
         original jurisdiction in habeas corpus proceedings. Those courts also have original
         jurisdiction in proceedings for extraordinary relief in the nature of mandamus,
         certiorari, and prohibition.

                  "Superior courts have original jurisdiction in all causes except those given by
         statute to other trial courts."

Although a petition for a writ of habeas corpus may be filed in the Supreme Court or Court of Appeal,
the preferred forum is a superior court. (Cal. Rules of Court, rule 56(a)(1); In re Elias (1962) 209
Cal.App.2d 262, 264.)1 A superior court entertains such writs under its general powers as a court of
original jurisdiction. (See Burris v. Municipal Court (1973) 36 Cal.App.3d 233, 237, fn. 2.)

                 Any person unlawfully imprisoned may petition for a writ of habeas corpus. Penal
Code section 1473 subdivision (a)2 provides: "Every person unlawfully imprisoned or restrained of
his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the
cause of such imprisonment or restraint." The petition seeks to collaterally attack a presumptively
final criminal judgment. Habeas corpus is limited to challenges based on newly discovered evidence,
claims going to the jurisdiction of the court, and claims of a constitutional dimension. (In re Clark
(1993) 5 Cal.4th 750, 766.) An evidentiary hearing will be ordered if entitlement to relief depends
upon resolution of a factual dispute. ('' 1473-1511; See People v. Duvall (1995) 9 Cal.4th 464,
474-479.)

                  A habeas corpus writ is thus properly filed in a superior court when it raises matters
different from the matters raised in an appeal pending before the appellate department of the superior
court. (In re Carpenter (1995) 9 Cal.4th 634, 646; People v. Schultz (1992) 5 Cal.App.4th 563, 570 [a
trial court has jurisdiction to determine matters that are collateral or supplemental to issues involved in
a related appeal].)

                The Judicial Council has adopted procedural rules for the various departments of a
superior court. Rule 260 specifies the procedures to be followed in habeas corpus proceedings filed in
a superior court; it contains no authorization to file the petition in the appellate department. No



    1
      The Supreme Court and Court of Appeal are not equipped to conduct an evidentiary hearing and thus normally appoint a
referee to take evidence and make recommendations; alternatively, the proceeding may be transferred to a superior court. (Pen.
Code, ' 1508; People v. Romero (1994) 8 Cal.4th 728, 740.)

    2
     All references hereafter to the Penal Code are by section number only.


                                                             2.                                                      95-706

constitutional provision, statute, or rule governing the filing of a petition for a writ of habeas corpus
authorizes the filing of the petition in the appellate department of a superior court.

                  2.          Appellate Department of a Superior Court

                  Section 11 of article VI of the Constitution provides:

                  "The Supreme Court has appellate jurisdiction when judgment of death has
         been pronounced. With that exception courts of appeal have appellate jurisdiction
         when superior courts have original jurisdiction and in other causes prescribed by
         statute.

                  "Superior courts have appellate jurisdiction in causes prescribed by statute that
         arise in municipal courts in their counties.

                 "The Legislature may permit appellate courts to take evidence and make
         findings of fact when jury trial is waived or not a matter of right."

The Legislature has implemented this constitutional provision in part by enacting Code of Civil
Procedure section 77 governing the composition and function of the appellate department of a superior
court:

                 "(a) In every county and city and county, there is an appellate department of
         the superior court consisting of three judges or, when the Chairperson of the Judicial
         Council finds it necessary, four judges.

                  ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                 "(e) Every appellate department under this section shall have jurisdiction on
         appeal from the municipal and justice courts within the county or city and county in all
         cases in which an appeal may be taken to the superior court as is now or may hereafter
         be provided by law, except such appeals as require a retrial in the superior court. The
         powers of each appellate department shall be the same as are now or may hereafter be
         provided by law or rule of the Judicial Council relating to appeals to the superior
         courts."3

               The Legislature has also provided specific procedures governing appeals from
municipal court judgments and orders in criminal cases. ('' 1466-1469.) Subdivision (a) of section
1466 provides:




    3
     All justice courts are now municipal courts. (Cal. Const., art VI, '' 1, 5; 78 Ops.Cal.Atty.Gen. 151 (1995).)


                                                                          3.                                         95-706

                 "An appeal may be taken from a judgment or order of an inferior court in an
        infraction or misdemeanor case, to the superior court of the county in which the inferior
        court is located, in the following cases:

                   ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                   "(2) By the defendant:

                "(A) From a final judgment of conviction. A sentence, an order granting
        probation, a conviction in a case in which before final judgment the defendant is
        committed for insanity or is given an indeterminate commitment as a mentally
        disordered sex offender, or the conviction of a defendant committed for controlled
        substance addiction shall be deemed to be a final judgment within the meaning of this
        section. Upon appeal from a final judgment or an order granting probation the court
        may review any order denying a motion for a new trial.

                   "(B) From any order made after judgment affecting his or her substantial
        rights."

Section 1469 states:

                 ". . . Upon an appeal by a defendant the court may, without exception having
        been made in the trial court, review any question of law involved in any ruling, order,
        instruction, or thing whatsoever said or done at the trial or prior to or after judgment,
        which thing was said or done after objection made in and considered by the trial court
        and which affected the substantial rights of the defendant. The court may also review
        any instruction given, refused or modified, even though no objection was made thereto
        in the trial court if the substantial rights of the defendant were affected thereby. The
        reviewing court may reverse, affirm or modify the judgment or order appealed from,
        and may set aside, affirm or modify any or all of the proceedings subsequent to, or
        dependent upon, such judgment or order, and may, if proper, order a new trial. If a
        new trial is ordered upon appeal, it must be had in the court from which the appeal is
        taken."

                The Judicial Council has adopted rules pertaining to the appellate departments of
superior courts (Cal. Rules of Court, rules 101-108) and specifically pertaining to the filing of appeals
from the municipal court in criminal cases (rules 180-191). No rule allows the appellate department
of a superior court to hear habeas corpus petitions.

                As authorized and limited by the terms of Code of Civil Procedure section 77, the
appellate department of a superior court reviews questions of law in direct appeals from municipal
court judgments and orders. In a direct appeal, the appellate department's function is to review the trial
court's judgment with respect to matters contained in the record of the trial proceedings; matters not
presented in the record cannot be considered. (See In re Carpenter, supra, 9 Cal.4th at 646; In re
Hochberg (1970) 2 Cal.3d 870, 875.)

                                                                           4.                                         95-706

                Specifically, the appellate department of a superior court is separate and distinct from
the court's other departments which have original jurisdiction in habeas corpus proceedings. In
Thomasian v. Superior Court (1953) 122 Cal.App.2d 322, 331, the Court of Appeal discussed the
appellate department's limited jurisdiction and powers:

                 "`The appellate department of the superior court does not have jurisdiction "on
         such appeals as require retrial in the superior court" [citation], and hence may not
         render the same or a different order, judgment or decree of its own, but is confined to
         an affirmance, modification or reversal of the judgment etc. of the trial (in this case
         municipal) court. If the superior court does not conduct a new trial, but merely affirms
         or reverses a judgment its appellate jurisdiction is similar to that of any appellate court.
         [Citation.]'

                 "We have here a picture of a distinct and separate department of the superior
         court (a species of entity) with jurisdiction and powers defined by statute pursuant to
         express constitutional sanction, limited to the consideration of `appeals' from the
         municipal court not requiring a retrial, hence not embracing jurisdiction to review a
         municipal court judgment through the medium of an original proceeding." (Fn.
         omitted.)

The court further explained:

                 "Although each of the judges assigned to an appellate department, just as any
         other judges of the superior court, may exercise the general powers of the court, it
         would not seem competent for them in their appellate department capacity to entertain
         and act upon an original proceeding, as was done in the instant case. . . .

                 ". . . The conclusion seems inescapable that the judges participating in the
         decision were acting in the exercise of the jurisdiction and powers of the appellate
         department, not in the exercise of the general jurisdiction and powers of the superior
         court, and that the resultant judgment was rendered by the appellate department in
         excess of its jurisdiction and void." (Id., at p. 333.)

The court also specifically noted:

                  "The constitutional grant of power to issue writs of mandamus, certiorari,
         prohibition, quo warranto, and habeas corpus still runs to the `superior courts' and `their
         judges,' not to the appellate department. [Citation.]" (Id., at p. 331, fn.)4

    4
      The appellate department may properly consider a petition for writ of coram nobis when it has confirmed a judgment in
the same proceeding on appeal. Unlike a habeas corpus proceeding, coram nobis operates as part of the appellate
proceedings of the original case and does not introduce a new or separate adversary proceeding. (' 1265; People v.
Allenthorp (1966) 64 Cal.2d 679, 681.)


                                                            5.                                                    95-706

                No constitutional provision, statute, or rule governing appellate departments of superior
courts authorizes such departments to hear habeas corpus proceedings, whether related to appeals
pending before them or not. The different procedures prescribed for the review of a petition for a writ
of habeas corpus and for the hearing of an appeal do not allow for concurrent consideration by the
appellate department. (See People v. Zamora (1980) 28 Cal.3d 88, 98.)

               We conclude that the appellate department of a superior court lacks jurisdiction to rule
upon a petition for a writ of habeas corpus relating to and in conjunction with an appeal from a
municipal court misdemeanor conviction.

                                                *****




                                                   6.                                            95-706

