Bucci v. Superior Court
Filed 6/29/12
Bucci v. Superior Court CA1/5
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
NICOLA CHRISTOPHER BUCCI,
Petitioner,
v.
THE
SUPERIOR COURT OF
SOLANO
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
A135321
(Solano County
Super. Ct. No. FCR290146)
THE COURT:
Petitioner Nicola Christopher Bucci
was convicted of two counts of second
degree murder, with an enhancement found true, and was sentenced to 23
years to life in state prison. We
affirmed the judgment of conviction on appeal in People v. Bucci (June 23, 2010, A124228 [nonpub. opn.]). Petitioner now collaterally attacks his
conviction by way of habeas corpus petition.
Petitioner initially sought habeas
corpus relief in respondent superior court.
By an order filed March 6, 2012, respondent superior court, through the
Honorable Harry S. Kinnicutt, denied the requested relief.
The parties to this proceeding agree
that Judge Kinnicutt was disqualified from ruling on petitioner’s
postconviction habeas corpus petition, since on December 20, 2006, during the
underlying criminal case (People v. Bucci
(Super. Ct. Solano County No. FCR238111)), Judge Kinnicutt accepted
petitioner’s peremptory challenge. (Code
Civ. Proc., § 170.6; Yokley v.
Superior Court (1980) 108 Cal.App.3d 622.)
We previously notified the parties
that we might deem the petition for writ
of habeas corpus as seeking a writ of mandate to compel respondent superior
court to vacate its March 6, 2012 order denying habeas corpus relief, and to
order the presiding judge of respondent superior court, or his or her designee,
to reassign petitioner’s habeas corpus petition to a different judge for
decision. The parties have filed briefs
in response to our notice.
The Attorney General argues that
petitioner has forfeited, or waived, any objection to Judge Kinnicutt’s
involvement in the superior court habeas corpus proceeding. But as petitioner’s reply aptly notes, the
Attorney General’s argument assumes petitioner had notice of Judge Kinnicutt’s assignment to decide petitioner’s
habeas corpus petition before Judge
Kinnicutt rendered his decision. The
Attorney General has proffered no evidence suggesting petitioner had advance
notice of Judge Kinnicutt’s assignment, and petitioner’s counsel has filed a
declaration denying such notice. Since
the record before us does not demonstrate that petitioner had advance notice of
Judge Kinnicutt’s assignment to decide petitioner’s habeas corpus petition, we
cannot sustain the Attorney General’s argument.
In accordance with our notification
to the parties that we might do so, we will deem the petition herein as seeking
a writ of mandate, and direct issuance of a peremptory writ in the first
instance. (See Palma v. U.S.
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) Petitioner’s right to relief is obvious, and
no useful purpose would be served by issuance of an alternative writ, further
briefing, and oral argument. (Ng v.
Superior Court (1992) 4 Cal.4th 29, 35; see Lewis v.
1236-1237, 1240-1241; see also Brown,
Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233,
1240-1244.)
name="_ftnref2" title="">[1]
Let a peremptory writ of mandate
issue directing respondent superior court to vacate its March 6, 2012
“Order Denying Petition for Writ of Habeas Corpus†in People v. Bucci (Super. Ct. Solano County No. FCR290146). Thereafter, the Presiding Judge, or his or
her designee, shall reassign petitioner’s habeas corpus petition for decision
by a judge other than the Honorable Harry S. Kinnicutt. This decision shall be final as to this court
within five (5) court days. (Cal. Rules
of Court, rule 8.490(b)(3).)
suggestion that, in the context of the habeas corpus petition, we issue an
order to show cause returnable to the superior court. An order to show cause does not issue unless
and until this court determines petitioner has articulated a prima facie case
for relief. (People v. Duvall (1995) 9 Cal.4th 464, 475.) Since this opinion directs respondent
superior court to issue a new decision on petitioner’s superior court habeas
petition, it would be premature for this court to review the merits of the
petition filed in this court. (See
294.)
