Fear Not Law Articles: Burton v. Superior Court

Burton v. Superior Court

Filed 3/3/08 Burton v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

ROBERT S. BURTON,

Petitioner,

THE SUPERIOR COURT OF MADERA COUNTY,

Respondent;

THE PEOPLE,

Real Party In Interest.

F054513

(Madera Sup. Ct. No. CCR014411)

OPINION

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of mandate.

Robert S. Burton, in pro. per., for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Jeffrey D. Firestone, Deputy Attorney General, for Respondent.

-ooOoo-

On April 26, 2006, petitioner was charged in the Madera County Superior Court by criminal complaint with violation of Vehicle Code section 23152, subdivision (a),^{^[1]}driving under the influence of an alcoholic beverage or drug (count 1). He was also charged with violation of section 16028, subdivision (a), driving without evidence of financial responsibility (count 2). Due to his in custody status, petitioner filed a section 41500 request, asking that the above described charges be dismissed. The Madera County Superior Court denied the request. The instant petition followed.

Section 41500 provides, in pertinent part:

(a) No person shall be subject to prosecution for any nonfelony offense arising out of the operation of a motor vehicle or violation of this code as a pedestrian which is pending against him at the time of his commitment to the custody of the Director of Corrections or the Department of the Youth Authority. [] []

(f) The provisions of subdivisions (a), (b), and (c) do not apply if the pending offense is a violation of Section 23103, 23152, or 23153.

Petitioner was charged in count 1 with violation of section 23152. The request to dismiss the charges was properly denied as to that count as provided in section 41500, subdivision (f). As conceded by the Attorney General, however, the Madera County Superior Court erred in denying the request to dismiss count 2, driving without proof of financial responsibility. ( 41500, subd. (a).)

Let a peremptory writ of mandate issue directing the Madera County Superior Court to dismiss count 2 in action No. CCR014411. The petition for writ of mandate is otherwise denied. This opinion is final forthwith.

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^*Before Harris, Acting P.J., Cornell, J., and Dawson, J.

^{^[1]} All further statutory references are to the Vehicle Code, unless otherwise indicated.

Description	On April 26, 2006, petitioner was charged in the Madera County Superior Court by criminal complaint with violation of Vehicle Code section 23152, subdivision (a),[1]driving under the influence of an alcoholic beverage or drug (count 1). He was also charged with violation of section 16028, subdivision (a), driving without evidence of financial responsibility (count 2). Due to his in custody status, petitioner filed a section 41500 request, asking that the above described charges be dismissed. The Madera County Superior Court denied the request. The instant petition followed. Let a peremptory writ of mandate issue directing the Madera County Superior Court to dismiss count 2 in action No. CCR014411. The petition for writ of mandate is otherwise denied. This opinion is final forthwith.
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