Quintor v. Municipal Court for San Leandro-Hayward Judicial District of Alameda County6/16/1982
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR
Civ. No. 52585
1982.CA.40595 ; 184 Cal. Rptr. 313; 133 Cal. App. 3d 980
June 16, 1982
ALFONSO QUINTOR, PLAINTIFF AND APPELLANT,
v.
THE MUNICIPAL COURT FOR THE SAN LEANDRO-HAYWARD JUDICIAL DISTRICT OF ALAMEDA COUNTY, DEFENDANT AND RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST AND RESPONDENT
Superior Court of Alameda County, No. H70325-7, Winton McKibben, Judge.
Shiver & Stadum, Edward M. Stadum, Pamela A. Fyfe, Edwin C. Shiver and Stephen C. Garavito for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, W. Eric Collins and David D. Salmon, Deputy Attorneys General, for Real Party in Interest and Respondent.
Opinion by Poche, J., with Caldecott, P. J., and Christian, J., concurring.
Poche
Alfonso Quintor appeals from a judgment of the Alameda County Superior Court denying his petition for a writ of mandate. We affirm.
Facts
On September 28, 1978, in the Fremont-Newark-Union City Municipal Court (Fremont), appellant entered a plea of guilty to driving while intoxicated. (Veh. Code, § 23102.)
In 1979, appellant was charged in the San Leandro-Hayward Municipal Court (Hayward) with driving while intoxicated and with having suffered the prior conviction in Fremont. On December 28, 1979, appellant moved in Hayward "to vacate and/or set aside" the Fremont prior conviction on the ground that " prior conviction was based upon a plea of guilty entered by [appellant without] assistance of counsel, and the record fails to demonstrate a knowing, intelligent and voluntary waiver of [appellant's] constitutionally guaranteed right to counsel." On February 8, 1980, the Hayward court denied the motion on the ground that the Fremont plea was not obtained in violation of appellant's constitutional rights.
On March 19, 1980, the Hayward court granted the district attorney's motion to strike the Fremont prior conviction from the pleading.
On the same day appellant entered a plea of nolo contendere to the charge of driving while intoxicated and was found guilty by the court. Appellant was placed on 18 months formal probation, fined $350.50, and ordered to attend Alameda County's Drinking Driver Treatment Program.
Appellant did not appeal from the judgment of conviction, nor did he file a motion to set aside the nolo plea. Instead, on August 19, 1980, long after the time for appeal had lapsed, he filed a petition for writ of mandate in the Alameda County Superior Court. There appellant requested the superior court to issue a writ of mandate ordering the respondent municipal court (Hayward) to "vacate and/or set aside the prior Fremont conviction, . . ." The superior court summarily denied the petition. This appeal follows.
Discussion
(See fn. 2.) When a superior court has summarily denied a petition for writ of prohibition or mandate, the issue on appeal is whether that denial was an abuse of discretion. (Gilbert v. Municipal Court (1977) 73 Cal. App. 3d 723, 734 [140 Cal. Rptr. 897]; Burrus v. Municipal Court (1973) 36 Cal. App. 3d 233, 236 [<
Page 1 2 3 California DUI Attorneys
DUI Lawyers
|