Opinion
A131460 Alameda County Super. Ct. No. C164901
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. JAMES K. MUHAMMAD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
I. INTRODUCTION
On December 14, 2010, appellant filed a petition for a writ of mandate in the Alameda County Superior Court asking that court to direct the Alameda County District Attorney, Nancy O'Malley, to (1) investigate actions taken by two of her subordinates, Deputy District Attorney Jeffrey Stark and Inspector Raymond Conner, along with Deputy Registrar of Voters Cynthia Cornejo, and (2) criminally prosecute those three individuals for filing false declarations in order to obtain warrants to search and then to arrest appellant for falsely stating, in a Declaration of Candidacy, that he was a resident at a specific address in Emeryville or Oakland in Alameda County.
The superior court summarily denied appellant's petition and also denied appellant's request for a statement of decision. Appellant filed a notice of appeal from the trial court's denial of his petition for a writ of mandate. His court-appointed counsel then filed a Wende brief asking this court to review the record before us and determine if there are any issues deserving of further briefing. We decline to do so on the basis that this appeal is not governed by the Wende procedure articulated by our Supreme Court.
See People v. Wende (1979) 25 Cal.3d 436.
Shortly after the Wende brief was filed by appellant's court-appointed counsel, appellant personally filed a brief asking us to overturn the trial court's order. For the reasons explained below, we will consider the arguments presented in that brief and affirm the trial court's order denying appellant's petition for a writ of mandate.
II. FACTUAL AND PROCEDURAL BACKGROUND
In late-2008, appellant signed and filed a Declaration of Candidacy for election to the Alameda-Contra Costa County Transit District Board of Directors for Ward 2 of that district. He listed an address in Emeryville as his residence. Inspector Raymond Conner was assigned to determine appellant's actual city of residence. Among other things, Conner met with the Alameda County Registrar of Voters Supervisor, Cynthia Cornejo, to review the nomination documents filed by appellant. Conner also determined that the driver's license issued to appellant listed an address in Richmond, Contra Costa County, as his residence address. In addition to this information, Conner and Alameda County Deputy District Attorney Jeffrey Stark presented additional evidence in order to secure search warrants. These warrants were issued on September 8, 2008, and permitted the search of the business office of the senior housing facility in Richmond where appellant appeared to reside; the custodian of records of PG&E and AT&T; and Equifax Information Services.
In a letter dated April 13, 2010, appellant demanded Alameda County District Attorney O'Malley make a thorough investigation and bring criminal charges against Stark, Conner and Cornejo because they had, according to appellant, filed a false affidavit to secure the search warrants. O'Malley did not do so.
On December 14, 2010, appellant filed a petition for "Alternative Writ of Mandate or Alternative Writ of Prohibition." This petition was summary denied by the Alameda County Superior Court on January 25, 2011. On January 29, 2011, appellant filed a request for findings of fact regarding this denial, a request which was also denied on February 1, 2011. Appellant filed a timely notice of appeal from the court's order denying his petition for a writ of mandate on February 10, 2011.
III. DISCUSSION
We will start by discussing why this appeal is not properly before us as a Wende appeal. Such appeals, as our Supreme Court and sister appellate courts have held several times, are limited to appeals from convictions of an appellant in a criminal case, and do not extend to other types of appeals, e.g., from judgments in child custody cases (In re Sade C. (1996) 13 Cal.4th 952), judgments in conservatorship proceedings under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.; Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.)), or denial of outpatient status requested via a petition for restoration of competency (People v. Dobson (2008) 161 Cal.App.4th 1422).
See also People v. Taylor (2008) 160 Cal.app.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36.
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If, as just noted, such matters are clearly not subject to Wende review, then most certainly neither is an appeal from the denial of a petition for a writ of mandate demanding that a district attorney investigate his or her subordinates and other public employees for perjury, etc. We thus reject the arguments put forward by appellant's counsel in his Wende brief.
That does not end our consideration of this case, however, because, as noted above, appellant filed an in pro per brief in this action that raises issues regarding the merits of the trial court's denial of his petition for a writ of mandate. That brief essentially repeats the background facts recited in the Wende brief filed by court-appointed counsel and then proceeds to argue various and sundry reasons as to why the trial court's denial of his petition directed at Alameda County District Attorney O'Malley was incorrect.
In Ben C., our Supreme Court stated that the party on whose behalf an improperly characterized Wende brief is filed should be "informed of the right to file a supplemental brief." The appellate court may then choose, "should it find it appropriate[,] to retain the appeal." (Ben C., supra, 40 Cal.4th at p. 544, fn. 6 and 7.) Therefore, we will treat appellant's brief as a supplemental brief, retain the appeal, and consider it on its merits.
The trial court acted properly when it denied appellant's petition for a writ of mandate to compel the Alameda County District Attorney to investigate the actions of three county employees involved in determining whether appellant's actions in running for office were unlawful. As this court made clear more than 50 years ago in Taliaferro v. Locke (1960) 182 Cal.App.2d 752, 755-756, mandamus will not lie to compel a district attorney to investigate or prosecute any particular individual or individuals. In Taliaferro, we held that "[a]s concerns the enforcement of the criminal law the office of district attorney is charged with grave responsibilities to the public. These responsibilities demand integrity, zeal and conscientious effort in the administration of justice under the criminal law. However, both as to investigation and prosecution that effort is subject to the budgetary control of boards of supervisors or other legislative bodies controlling the number of deputies, investigators and other employees. Nothing could be more demoralizing to that effort or to efficient administration of the criminal law in our system of justice than requiring a district attorney's office to dissipate its effort on personal grievance, fanciful charges and idle prosecution." (Id. at pp. 755-756; People v. Eubanks (1996) 14 Cal.4th 580, 589; see also People v. Birks (1998) 19 Cal.4th 108, 134; Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) Because appellant's petition attempts to do just that, the trial court properly denied it.
Appellant also argues that the trial court erred in denying his request for a statement of decision. The trial court properly denied this request under Code of Civil Procedure section 632 because "[t]here was no trial or hearing on the petition for writ of mandate previously filed in this court, which was summarily denied." Appellant was not, therefore, entitled to a statement of decision.
IV. DISPOSITION
The order denying appellant's petition for writ of mandate is affirmed.
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Haerle, Acting P.J.
We concur:
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Lambden, J.
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Richman, J.