Filed 12/30/14 P. v. Gonzalez CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B257177

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. 1LG02039)
         v.

LEVI GERMAN GONZALEZ,

         Defendant and Respondent.




         APPEAL from an order of the Superior Court of Los Angeles County, Halim
Dhanidina, Judge. Reversed and remanded.


         Douglas P. Haubert, City Prosecutor, and Randall C. Fudge, Assistant City
Prosecutor, for Plaintiff and Appellant.


         Karlin & Karlin and Marc A. Karlin for Defendant and Respondent.
       Defendant and respondent Levi German Gonzalez pleaded no contest to inflicting
corporal injury upon his spouse in 2011. In 2013, he filed a petition for a writ of habeas
corpus, seeking vacation of the conviction. Without issuing an order to show cause
(OSC) or a writ of habeas corpus, the trial court granted the relief Gonzalez requested.
Plaintiff and appellant the People of the State of California appeal the superior court’s
order. They contend the court improperly granted the requested relief without issuing an
OSC. We agree. Accordingly, we reverse the superior court’s order and remand for
further proceedings.
                            PROCEDURAL BACKGROUND
       On June 28, 2011, respondent Gonzalez was charged by complaint with inflicting
corporal injury upon his spouse (Pen. Code, § 273.5, subd. (a), count 1)1 and false
imprisonment (§ 236, count 2), both misdemeanors. On the same date, pursuant to a
negotiated plea, Gonzalez pleaded no contest to count 1. In conjunction with his plea, he
completed a document entitled “Misdemeanor Advisement of Rights, Waiver, and Plea
Form.” The trial court suspended imposition of sentence, placed Gonzalez on summary
probation for three years, imposed a variety of probation conditions, and dismissed
count 2.
       In June 2013, Gonzalez filed a petition for a writ of habeas corpus seeking
vacation of the 2011 judgment. He served a copy on the Long Beach City Prosecutor’s
office. The petition, along with a memorandum of points and authorities and a
supporting declaration, alleged the following. Gonzalez, a Mexican citizen, was seeking
to become a lawful permanent resident of the United States based upon his marriage to
his U.S. citizen wife. However, his 2011 no contest plea and conviction disqualified him
from completing his permanent resident application and subjected him to removal from
the United States.




1      All further undesignated statutory references are to the Penal Code.


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       Gonzalez sought vacation of his conviction on the ground that he had received
ineffective assistance of counsel in the 2011 plea proceeding. He averred that the deputy
public defender who represented him failed to advise him that his plea would
permanently affect his immigration status and future immigration proceedings; failed to
recommend that he consult with an immigration attorney; and failed to alert him to the
fact that his no contest plea would “virtually assure[]” denial of his permanent resident
application and subject him to deportation. Had he been aware of the immigration
consequences, he would not have entered a no contest plea. He urged that under Padilla
v. Kentucky (2010) 559 U.S. 356, failure to advise a defendant of the immigration
consequences of a plea constitutes ineffective assistance of counsel.
       The superior court did not issue an OSC, and no return was filed. The court did
not request that the People file an informal response to the petition, and none was filed.
       On September 20, 2013, the trial court held a hearing on Gonzalez’s habeas
petition. A Long Beach deputy city prosecutor appeared on behalf of the People. When
the trial court queried whether the prosecutor represented the People in the matter, the
prosecutor replied, “I’m not familiar, and no one has spoken to me about it.” He averred
that he knew “absolutely nothing” about the habeas petition. The trial court referenced “a
proof of service that was filed” and allowed the prosecutor time to locate the file.
Subsequently, the court asked whether the People were prepared to go forward, and the
prosecutor replied, “The People submit it.” The trial court then ordered the conviction
vacated and the case dismissed.
       On October 9, 2013, the People appealed to the Los Angeles County Superior
Court Appellate Division, which subsequently transferred the appeal to this court. (See
§§ 1238, 1506.)




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                                        DISCUSSION
       The People argue that the superior court improperly granted the relief requested in
Gonzalez’s habeas petition without first issuing an OSC and allowing them to file a
verified return. We agree.
       People v. Romero (1994) 8 Cal.4th 728 (Romero) detailed the procedural
requirements that a court must follow when ruling on a petition for a writ of habeas
corpus. (Id. at pp. 736-741; see also In re Olson (2007) 149 Cal.App.4th 790, 800;
In re Stevenson (2013) 213 Cal.App.4th 841, 855-857; Cal. Rules of Court, rule 4.551.)
In Romero, the Court of Appeal considered petitioner Romero’s habeas corpus petition
and appeal concurrently. Without issuing an OSC, the court issued an opinion reversing
Romero’s conviction on the grounds stated in the habeas petition, and dismissed the
appeal as moot. (Romero, at pp. 735-736.) Our Supreme Court concluded the appellate
court could not grant the relief requested in the petition without first issuing either a writ
of habeas corpus or an OSC. (Id. at p. 734.)
       Romero explained that courts must comply with the procedures set forth in
sections 1473 through 1508 when presented with a petition for a writ of habeas corpus.
(Romero, supra, 8 Cal.4th at p. 737.) A court must first determine whether the petition
states a prima facie case for relief. If not, the court may deny the petition outright. If, on
the other hand, the petition states a prima facie case on a claim that is not procedurally
barred, the court “is obligated by statute to issue a writ of habeas corpus.” (Ibid.) “The
role that the writ of habeas corpus plays is largely procedural. It ‘does not decide the
issues and cannot itself require the final release of the petitioner.’ ” (Id. at p. 738; see
Durdines v. Superior Court (1999) 76 Cal.App.4th 247, 251, fn. 6 [“The writ of habeas
corpus does not entitle a petitioner to his release. Its function is merely procedural, as it
triggers adversarial proceedings and requires the respondent to file a return”].) Rather
than issuing a writ of habeas corpus, a court may use an OSC as a substitute. An OSC
directs the respondent to serve and file a written return. (Romero, at p. 738.) The “return
‘is an essential part of the scheme’ by which relief is granted in a habeas corpus
proceeding. [Citation.]” (Id. at p. 739.) The petitioner’s response to the return, known

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as the traverse, may deny the material facts in the return and incorporate the allegations
of the petition. (Ibid.) “Thus, it is through the return and the traverse that the issues are
joined in a habeas corpus proceeding.” (Ibid.)
       Romero explained the reason for requiring the foregoing procedures: “As this
summary of habeas corpus procedure reveals, issuance of a writ of habeas corpus or an
order to show cause 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. The function of the writ or order is to ‘institute a proceeding in which issues
of fact are to be framed and decided.’ [Citation.] The issuance of either the writ of
habeas corpus or the order to show cause creates a ‘cause,’ thereby triggering the state
constitutional requirement that the cause be resolved ‘in writing with reasons
stated’. . . . Thus, the writ or order is the means by which issues are joined (through the
return and traverse) and the need for an evidentiary hearing determined. [¶] As the
means by which a judicial proceeding is instituted, the issuance of the writ (or order to
show cause) is mandatory, not optional. Penal Code section 1476 states that ‘[a]ny court
or judge authorized to grant the writ, to whom a petition therefor is presented, . . . must, if
it appear that the writ ought to issue, grant the same without delay . . . .’ This court has
confirmed this statutory command: ‘[I]f a petition for habeas corpus makes a prima facie
showing, then the opposing side must be given an opportunity to file a return to the
petition.’ [Citations.]” (Romero, supra, 8 Cal.4th at p. 740, italics added, fn. omitted,
underscoring added; In re Olson, supra, 149 Cal.App.4th at pp. 800-801; In re Lugo
(2008) 164 Cal.App.4th 1522, 1542 [a “court typically may not grant relief unless it first
issues an order to show cause or a writ of habeas corpus. [Citation.] In the absence of an
order to show cause or a writ of habeas corpus, ‘there are no facts, issues or cause’ before
the court, and any order granting relief is a nullity” (fn. omitted)].)




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       In light of the foregoing principles, it is clear that the trial court improperly
granted the relief requested in the habeas petition without first issuing an OSC or a writ.
(Romero, supra, 8 Cal.4th at p. 740; In re Olson, supra, 149 Cal.App.4th at p. 794 [where
superior court granted relief without issuing an OSC, the “procedural flaw render[ed] the
superior court’s orders a nullity”].)
       Gonzalez argues that the People “waived any appeal as to the Superior Court’s
alleged lack of proper procedure.” Gonzalez points out that the prosecutor did not object
or offer opposition at the hearing below, despite the superior court’s failure to issue an
OSC. He cites People v. Carrasco (2006) 137 Cal.App.4th 1050 and Gonzalez v. U.S.
(9th Cir. 1994) 33 F.3d 1047, for the proposition that issues waived in the trial court are
waived on appeal. These contentions lack merit.
       Romero observed that 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 [the pertinent rule 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.) In the instant case, however, the
prosecutor did not expressly enter into such a stipulation. Neither his failure to object nor
his submission of the issue was tantamount to such a stipulation.
       Indeed, In re Olson, supra, 149 Cal.App.4th 790 rejected an argument similar to
that made by Gonzalez. In Olson, the superior court granted the relief requested in
Olson’s habeas corpus petition without issuing an OSC or a writ, and without ordering
the filing of a return. (Id. at pp. 794, 799.) On appeal, Olson contended that the People’s
failure to object to the procedure followed by the superior court constituted a forfeiture of
the contention on appeal, especially in light of the fact the superior court there had sought
informal responses from the parties, indicating it was contemplating issuing the requested
relief without complying with Romero. (Id. at p. 801.) Olson rejected this argument,
explaining that “there was no stipulation relieving the superior court of its duty to issue

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the OSC or the writ. Nor did the failure to object amount to the stipulation referred to in
Romero.” (Id. at p. 802.) Olson distinguished People v. Carrasco and Gonzalez v. U.S.,
the same authorities cited by respondent here, on the basis that neither case addressed “a
forfeiture or waiver in the context of whether a court is entitled to grant a petitioner
habeas corpus relief when no OSC issues.” (Olson, at pp. 801-802.) The same is true
here.
        Accordingly, we order the superior court’s order reversed. We express no opinion
on the merits of Gonzalez’s habeas corpus petition.




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                                    DISPOSITION
      The superior court’s September 20, 2013 order vacating Gonzalez’s 2011
conviction and dismissing the matter is reversed. The matter is remanded for further
proceedings consistent with the opinions expressed herein and with People v. Romero
(1994) 8 Cal.4th 728.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                ALDRICH, J.


We concur:


             KITCHING, Acting P. J.




             KUSSMAN, J.*




*     Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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