Cal. R. 8.385

As amended through July 24, 2024

Rule 8.385 - Proceedings after the petition is filed

(a) Production of record

Before ruling on the petition, the court may order the custodian of any relevant record to produce the record or a certified copy to be filed with the court. Sealed and confidential records are governed by rules 8.45-8.47.

(Subd (a) amended effective January 1, 2014.)

(b) Informal response

(1) Before ruling on the petition, the court may request an informal written response from the respondent, the real party in interest, or an interested person. The court must send a copy of any request to the petitioner.

(2) The response must be served and filed within 15 days or as the court specifies. If the petitioner is not represented by counsel in the habeas corpus proceeding, one copy of the informal response and any supporting documents must be served on the petitioner. If the petitioner is represented by counsel in the habeas corpus proceeding, the response must be served on the petitioner's counsel. If the response is served in paper form, two copies must be served on the petitioner's counsel. If the petitioner is represented by court-appointed counsel other than the State Public Defender's Office or Habeas Corpus Resource Center, one copy must also be served on the applicable appellate project.

(3) If a response is filed, the court must notify the petitioner that a reply may be served and filed within 15 days or as the court specifies. The court may not deny the petition until that time has expired.

(Subd (b) amended effective January 1, 2016; previously amended effective January 1, 2014.)

(c)Petition filed in an inappropriate court

(1) A Court of Appeal may deny without prejudice a petition for writ of habeas corpus that is based primarily on facts occurring outside the court's appellate district, including petitions that question:

(A) The validity of judgments or orders of trial courts located outside the district; or

(B) The conditions of confinement or the conduct of correctional officials outside the district.

(2) A Court of Appeal should deny without prejudice a petition for writ of habeas corpus that challenges the denial of parole or the petitioner's suitability for parole if the issue was not first adjudicated by the trial court that rendered the underlying judgment.

(3) If the court denies a petition solely under (1), the order must state the basis of the denial and must identify the appropriate court in which to file the petition.

(Subd (c) amended effective January 1, 2012.)

(d)Order to show cause

If the petitioner has made the required prima facie showing that he or she is entitled to relief, the court must issue an order to show cause. An order to show cause does not grant the relief sought in the petition.

(e)Return to the superior court

The reviewing court may order the respondent to file a return in the superior court. The order vests jurisdiction over the cause in the superior court, which must proceed under rule 4.551.

(f)Return to the reviewing court

If the return is ordered to be filed in the Supreme Court or the Court of Appeal, rule 8.386 applies.

(Subd (f) was amended effective September 1, 2024.)

(g)Appointment of counsel

(1) If the return is ordered to be filed in the Supreme Court or the Court of Appeal, the court in which the return is ordered filed must appoint counsel for any unrepresented petitioner who desires but cannot afford counsel.

(2) When a petition raises a claim under Penal Code section 745(a) and requests appointment of counsel, the court must appoint counsel if the petitioner cannot afford counsel and either the petition alleges facts that would establish a violation of section 745(a) or the State Public Defender requests that counsel be appointed. Newly appointed counsel may amend a petition filed before their appointment.

(Subd (g) was adopted effective September 1, 2024.)

Cal. R. Ct. 8.385

Subd (g) was adopted effective 9/1/2024; Rule 8.385 amended effective 1/1/2016; adopted effective 1/1/2009; previously amended effective 1/1/2012, and1/1/2014.

Advisory Committee Comment

Subdivision (a). Examples of confidential records include Penal Code section 1203.03 diagnostic reports, records closed to inspection by court order under People v. Marsden (1970) 2 Cal.3d 118 or Pitchess v. Superior Court (1974) 11 Cal.3d 531, in-camera proceedings on a confidential informant, and defense expert funding requests (Pen. Code, § 987.9; Keenan v. Superior Court (1982) 31 Cal.3d 424, 430).

Subdivision (c). Except for subdivision (c)(2), rule 8.385(c) restates former section 6.5 of the Standards of Judicial Administration. Subdivision (c)(2) is based on the California Supreme Court decision in In re Roberts (2005) 36 Cal.4th 575, which provides that petitions for writ of habeas corpus challenging denial or suitability for parole should first be adjudicated in the trial court that rendered the underlying judgment. The committee notes, however, that courts of appeal have original jurisdiction in writ proceedings and may, under appropriate circumstances, adjudicate a petition that challenges the denial or suitability of parole even if the petition was not first adjudicated by the trial court that rendered the underlying judgment. (In re Kler (2010) 188 Cal.App.4th 1399.) A court of appeal may, for example, adjudicate a petition that follows the court's prior reversal of a denial of parole by the Board of Parole Hearings where the issues presented by the petition directly flow from the court of appeal's prior decision and the limited hearing conducted. (Id. at 1404-05.)

Subdivision (d). Case law establishes the specificity of the factual allegations and support for these allegations required in a petition for a writ of habeas corpus (see, e.g., People v. Duvall (1995) 9 Cal.4th 464, 474-475, and Ex parte Swain (1949) 34 Cal.2d 300, 303-304). A court evaluating whether a petition meeting these requirements makes a prima facie showing asks whether, assuming the petition's factual allegations are true, the petitioner would be entitled to relief (People v. Duvall, supra).

Issuing an order to show cause is just one of the actions a court might take on a petition for a writ of habeas corpus. Examples of other actions that a court might take include denying the petition summarily, requesting an informal response from the respondent under (b), or denying the petition without prejudice under (c) because it is filed in an inappropriate court.