In re Fractious
On December 21, 2010, petitioner filed a petition for writ of habeas corpus seeking constructive notice of appeal pursuant to In re Benoit (1973) 10 Cal.3d 72, 86-89. On January 13, 2011, the Attorney General filed an informal response to the petition pointing out that, as part of his plea bargain, petitioner waived his right to appeal. On February 2, 2011, petitioner replied that the validity of the plea waiver could not be determined without review of the reporter's transcript of the hearing at which petitioner entered his plea. This court directed the superior court to prepare a copy of that reporter's transcript and allowed petitioner and the Attorney General to file supplemental pleadings. Petitioner merely submitted on the current pleadings, and the Attorney General continued to oppose the granting of the writ petition. On May 12, 2011, this court issued an order to show cause and allowed the Attorney General to file a return or to rely on its informal response. We noted that if no formal return was filed, the Attorney General would be deemed to have agreed that there are no material contested issues of fact, and that this court may grant relief without an evidentiary hearing. Petitioner filed a formal reply and noted that his waiver of right to appeal pertained to errors occurring before, but not after, the waiver. (People v. Mumm (2002) 98 Cal.App.4th 812, 815; People v. Vargas (1993) 13 Cal.App.4th 1653, 1662 [Fourth Dist., Div. Two].)
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