How Writ Petitions Are Used in California Appeals

Writ petitions play an important part in California appeals. There are lots of different types of writ petitions. But some of the most common writs used in California appeals include:

  • writs of habeas corpus, and

  • writs of mandate or prohibition.

Below are some of the basics of how these writs are used in California appellate cases.

WritS of Habeas Corpus in California state courts

A petition for writ of habeas corpus is a versatile legal tool. Habeas petitions are mainly used in criminal and juvenile delinquency cases. However, a habeas petition can also be used in family and juvenile dependency cases in certain circumstances.

To use a habeas petition, there are two basic requirements:

  • Custody. The petitioner (person filing the petition) must be in “custody.” For purposes of this requirement, a person is considered to be in custody if they are in jail, in prison, in a juvenile detention facility, on probation, on parole, released on bail, or released on their own recognizance (“OR’d”). But a petitioner can also meet the custody requirement in various types of child custody matters. In these types of cases, the petitioner is generally arguing their child is wrongfully in someone else’s custody.

  • Exhaustion and inadequacy of legal remedies. The exhaustion requirement basically says that a habeas petition can’t be used if the petitioner has some other adequate legal remedy. In other words, a habeas petition is available only if the petitioner has no other option for bringing the legal issue to the attention of the courts. In some situations, exhaustion also requires the petitioner to first request relief from an administrative agency such as the Board of Parole Hearings or prison officials.

When a petitioner can’t meet these two requirements, the court will generally dismiss the petition without even considering the legal issues raised within.

companion Habeas Petitions

Filed along with a pending appeal. In the context of appeals, a habeas petition is normally filed along with the Appellant’s Opening Brief. This type of habeas is sometimes called a “companion habeas” because the petitioner will generally be asking that the Court of Appeal consider the habeas petition along with the issues raised in the appeal.

Habeas petitions can raise issues outside the record. In the Opening Brief, the appellant (person who filed the appeal) can only address issues that appear in the appellate record (the transcripts and documents filed in the lower court). But there are sometimes legal issues that are important to the appeal but don’t appear in the appellate record. In other words, there can be legal issues based on things that happen behind the scenes, so to speak. To raise issues in the Court of Appeal that are based on evidence that’s outside of the appellate record, it’s typically necessary to file a companion habeas petition.

Ineffective assistance of counsel claims. Probably the most common issue raised in companion habeas petitions is ineffective assistance of trial counsel. Defendants in criminal cases, minors in juvenile delinquency cases, and parents and minors in juvenile dependency cases all have the right to the effective assistance of an attorney. But in many cases where ineffective assistance occurs, the evidence of the attorney’s inadequate performance isn’t in the appellate record. Hence, the petitioner must present evidence of the attorney’s incompetence through the filing of a habeas petition.

fREESTANDING Habeas Petitions

Habeas petitions that aren’t related to a pending appeal. In some situations where an appeal is not pending, it might still be appropriate to file a habeas petition in the Court of Appeal. Habeas petitions that aren’t directly related to a pending appeal are sometimes called “freestanding” petitions.

Common scenarios where freestanding habeas petitions are used. Freestanding habeas petitions have all kinds of applications. For example, freestanding habeas petitions can be used to challenge inhumane prison conditions, raise parole- and probation-related issues, and present new evidence of factual innocence.

Examples of freestanding habeas cases. Several of John P. McCurley’s published victories involved freestanding habeas petitions. In re Juarez, 182 Cal.App.4th 1316 (2010), the Court of Appeal issued a writ of habeas corpus because the Board of Parole Hearings wrongfully denied parole to a life prisoner (the petitioner). In re Bianca S., 241 Cal.App.4th 1272 (2015) also involved the Court of Appeal issuing writs of habeas corpus, though there was no pending appeal. There, the Court’s writs ordered the immediate release of two juveniles who were being wrongfully detained in juvenile hall.

WritS of MANDATE or PROHIBITION in California state courts

A writ of mandate (also called “mandamus”) and a writ of prohibition are distinct. But in some situations, they end up being two sides of the same coin. Mandate and prohibition petitions can be used in all types of cases, including criminal, juvenile delinquency, juvenile dependency, family, and civil cases.

Why Attorneys Use Writ Petitions

Appeals are slow. Most of the issues a person could raise in a petition for writ of mandate or prohibition could alternatively be dealt with in an appeal. However, in some types of cases, the parties can file a notice of appeal only once the case is complete. Also, appeals themselves take a long time (anywhere from about five months to several years). In other words, even if you have a winning appellate issue, the normal route of appealing is going to involve substantial delay. In the meantime, the party who wishes to appeal an issue can rack up lots of litigation costs, unnecessarily spend time in jail, or be inconvenienced in all kinds of other ways.

Writ petitions are much quicker than appeals. Getting a decision on an issue from the Court of Appeal through filing a writ of mandate or prohibition is normally a lot quicker (six months or less is common) than doing an appeal. In some cases, you can even get a “stay” of the lower court’s judgment or orders while the writ proceedings are going on in the Court of Appeal. Also, you don’t have to wait until a case is complete to file a writ of mandate or prohibition in the Court of Appeal—you’re generally allowed to file the writ petition at any stage of a case.

Circumstances Where You’re Allowed to Use a Writ Instead of an Appeal

Generally, appellate courts prefer that people use the normal appellate process rather than file writ petitions. When you file a writ petition, you’re essentially saying that you should be allowed to jump ahead in the line because you have an emergency that the Court of Appeal needs to address right away.

So appellate courts will allow you to do this only if you can show the normal appellate route is inadequate (typically, because of the delay) and you have a situation that requires the Court of Appeal’s immediate attention. (However, there are situations where there is no right to appeal and a writ is the only way to raise an issue in the Court of Appeal.)

Uses for Petition for Writ of Mandate

A writ of mandate is used to compel the trial court to do something that it’s required to do by law. In other words, with a petition for writ of mandate, the petitioner is requesting an order from the Court of Appeal that directs the trial court to take a certain action.

Some examples where a person might use a writ of mandate include:

  • challenging the initial detention findings in a juvenile dependency case

  • situations where a trial court fails to follow instructions of the Court of Appeal (typically, after a reversal and remand with instructions), and

  • requesting review of a trial court’s denial of a motion to suppress evidence.

However, there are lots of other scenarios in which a writ of mandate can be used. There are also situations where appellate review can be obtained only through filing a mandate petition.

Uses for Petition for Writ of Prohibition

A writ of prohibition is used to stop a trial court from proceeding forward with a case in situations where it lacks jurisdiction. In essence, with a petition for writ of prohibition, the petitioner is asking the Court of Appeal to put a halt to what’s going on in the trial court.

Common applications for a petition for writ of prohibition include:

  • raising issues of inadequate notice to a parent in a juvenile dependency case, and

  • challenging a trial court’s denial of a Penal Code section 995 motion to dismiss in a criminal case.

As with mandate petitions, there are lots of other applications for writs of prohibition and, in some situations, appellate review is only available through filing this type of a writ petition.