Filed 9/6/18 Hernandez v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MANUEL ALEJANDRO HERNANDEZ, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.	H046014 (Santa Clara County Super. Ct. Nos. C1760555; C1762405)

Manuel Alejandro Hernandez petitions this court for a writ of habeas corpus asking that we vacate the trial court’s order that he serve an additional 14 days of incarceration for violating his probation. We consider Hernandez’s petition as a petition for writ of mandate, and issue a peremptory writ directing the trial court to vacate its order imposing an additional 14 days of incarceration, and to issue a new and different order after exercising its discretion.

1. STATEMENT OF THE CASE

On June 14, 2017, Hernandez entered into a plea bargain in two criminal cases. In case number C1760555, Hernandez pleaded no contest to grand theft (Pen. Code, §§ 484-487, subdivision (c)), for an agreed upon disposition of three years of formal probation and six months of county jail. Of the six-month term, 90 days was to be served through the electronic monitoring program (“EMP”).

In case number C1762405, Hernandez pleaded no contest to misdemeanor vehicle theft (Veh. Code, § 10851), and misdemeanor resisting a police officer (Pen. Code, § 148, subd. (a)), for an agreed upon disposition of two years of informal probation concurrent with the term imposed in case number C1762405.

On September 28, 2017, the court imposed the agreed upon terms in both cases. The court ordered Hernandez to serve 90 days on the EMP program, followed by 90 days in the county jail. The court scheduled a remand date of February 1, 2018.

Hernandez failed to report to the EMP program and the court revoked probation. On February 1, 2018, the court reinstated probation and again ordered Hernandez to serve 90 days on the EMP program, followed by 90 days in the county jail. The court scheduled a remand date of June 7, 2018.

Hernandez failed to report to the EMP program a second time. On June 7, 2018, defense counsel informed the court that Hernandez had tuberculosis and was taking medication for it. Hernandez did not have proof of his diagnosis but offered to show the court his medication. The court noted that Hernandez had failed to complete EMP and had missed three office visits with the probation department. The court remanded Hernandez into custody and continued the matter to June 14, 2018 for further hearing.

On June 14, 2018, the court conducted the sentencing hearing on the matter. The court noted Hernandez’s failure to report to probation and failure to complete the EMP program. The court also noted that after Hernandez was remanded into custody, he was tested for tuberculosis by the Department of Corrections, and the results were negative. The court ordered Hernandez to serve the balance of his jail term in custody with no early release programs.

The court also addressed whether Hernandez should receive additional time in custody. The court stated: “Now the only lasting question is whether or not he’ll get any additional time for that whole display of ‘I’ve got TB.’ And it took up so much court time and so much custody time. [¶] So I do have interns this summer. These are law interns that I consult with on certain cases. I gave them one issue to decide this afternoon. And that issue is whether or not Mr. Hernandez deserves additional time as a result of this whole display that he gave to the court and to others.”

The court continued, “They have consulted and it is unanimous: All four interns made that decision, and they selected one person of the interns to give this court a recommendation of whether or not there will be additional time or not, and the reasons for that.”

The spokesperson for the interns stated her appearance for the record and represented that she had just finished her first year of law school.

The following exchange took place:

“THE COURT: What is the interns’ decision?

“[INTERN]: The interns of Department 39 believe that two additional weeks would be proper. If there was going to be additional time, two weeks is the period that a person would no longer be contagious after starting treatment for tuberculosis.

“THE COURT: And that’s the reason?

“[INTERN]: Yes.

“THE COURT: All right. So that will be two additional weeks. 14 days.”

On July 18, 2018, Hernandez filed a petition for writ of habeas corpus in this court challenging the trial court’s imposition of 14 additional days of incarceration because it was based on the decision of the interns, rather than an exercise of the court’s discretion.

On August 16, 2018, the prosecution submitted an informal response, agreeing that the trial court abdicated its legal duty by allowing the interns to determine the appropriate penalty to impose. The prosecution agreed that the order imposing the additional 14-day term must be vacated and the matter remanded for further proceedings in which the court exercises its own discretion.

The prosecution asserted that because the imposition of a term of probation is an appealable order, habeas corpus is not the appropriate procedure through which Hernandez can seek a remedy. Given the clear error and need for prompt relief, the prosecution suggested that the petition be deemed a notice of appeal and the memorandum be treated as an opening brief. The prosecution stipulated that the exhibits to the petition be deemed a complete record on appeal, and to the immediate issuance of the remittitur following this court’s decision. The prosecution states that reversal is required, and waives oral argument.

On August 21, 2018, Hernandez filed his reply, stating that if this court agreed that the matter should have been filed as an appeal rather than a petition for writ of habeas corpus, it would join in the prosecution’s proposed stipulations. Hernandez also informed this court for the first time that his 180-day term was set to end on August 29, 2018, and that the contested 14-day period of incarceration was set to begin on August 30, 2018.

On August 23, 2018, we stayed the trial court’s order imposing 14 additional days, reducing Hernandez’s total term of incarceration from 194 to 180 days. Given the need for expeditious resolution of the issue in this case, appeal is not an adequate remedy. Therefore, we notified the parties that we will deem Hernandez’s petition for writ of habeas corpus to be a petition for writ of mandate. We also notified the parties pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 (Palma), that we are considering issuing a peremptory writ of mandate in the first instance.

On August 28, 2018, the prosecution filed a response to this court’s Palma notice, offering the same stipulations stated in its August 16, 2018 response, including the immediate issuance of the remittitur upon this court’s decision.

2. DISCUSSION

1. Delegation of the Court’s Sentencing Discretion

Hernandez asserts that the trial court improperly delegated its sentencing discretion to its interns, and the prosecution agrees. (See People v. Surplice (1962) 203 Cal.App.2d 784, 791-792 [trial judge erred when he did not exercise his own discretion, instead relying on the reasoning of others in imposing sentence].) Here, the judge made no pretense that she was exercising her judicial discretion in sentencing Hernandez. Instead, she stated on the record that she delegated the sentencing decision to the interns and imposed their suggested term of 14 additional days of incarceration.

In addition to the improper delegation of authority, the judge’s consideration of the interns’ unsubstantiated medical understanding of tuberculosis was inappropriate. Here, the interns stated that their rationale in deciding that 14 additional days of incarceration should be added to the original sentence was that “two weeks is the period that a person would no longer be contagious after starting treatment for tuberculosis.” However, there is nothing in the record to support the interns’ conclusion that a person with tuberculosis will no longer be contagious after two weeks. The judge’s reliance on the interns’ unsubstantiated opinion renders her sentencing decision arbitrary. As a result of this, as well as the court’s failure to exercise its own discretion, Hernandez is entitled to have the 14-day additional term vacated.

2. A Peremptory Writ in the First Instance Is Appropriate.

Issuance of a peremptory writ in the first instance is the appropriate remedy in this case. As a general rule, this court will employ “the accelerated Palma procedure . . . . only when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . or when there is an unusual urgency requiring acceleration of the normal process.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 416, [Palma procedure appropriate where “(1) the papers before us adequately address the issues raised by the petition; (2) no factual dispute exists; (3) additional briefing is unnecessary, and (4) there is a compelling temporal urgency”].)

Here, this court’s use of the Palma procedure is justified. Hernandez’s entitlement to relief is clear-the judge stated on the record that she was abdicating her sentencing discretion to her summer interns. The papers before us adequately address the issues, and there is no dispute as to the procedural facts in this case. Finally, there is a temporal urgency given the immediate commencement of the additional 14-day period of incarceration, and this court’s stay of that term pending the outcome of the writ. This court has provided adequate notice to the parties by inviting preliminary opposition. “Having complied with the procedural prerequisites, we are authorized to issue a peremptory writ in the first instance.” (C.C. v. Superior Court (2008) 166 Cal.App.4th 1019, 1023.)

3. DISPOSITION

Let a peremptory writ of mandate issue directing respondent superior court to vacate its June 14, 2018 order requiring Hernandez to serve 14 additional days of incarceration, and to reconsider the matter and enter a new and different order after exercising its own discretion. To prevent further delays in the superior court proceedings, this decision shall be final as to this court five court days after its filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Remittitur shall issue immediately upon finality of this decision. The previously issued stay shall dissolve upon finality of this opinion.