People v. Noble CA4/1 ( 2020 )

Filed 12/15/20 P. v. Noble CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077542
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCN351073,
HCN1627)
JOHN WESLEY NOBLE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Harry M. Elias, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2016, John Wesley Noble was charged with a murder which occurred
in 1991. In October 2016, Noble pleaded guilty to second degree murder
(Pen. Code,1 § 187, subd. (a)) and admitted an enhancement under
1 All further statutory references are to the Penal Code.
section 12022, subdivision (a)(1). He was sentenced to an indeterminate term
of 15 years to life. Noble did not appeal either his plea or sentence.
In February2020, Noble filed a petition for writ of mandate in the trial
court seeking to have the court rule on motions to vacate his convictions
which had previously been denied. The trial court denied the petition by
written order which provided in part:
“In criminal cases a Writ of Mandamus or Mandate is
used to compel a court to perform a duty which is imposed
by law when no plain, speedy, or adequate remedy is
available. [(Civil Procedure Sections 1085-1086; Payne v.
Superior Court (1976) 17 Cal. 3d 908, 925.)] Failure to
allege and prove a duty of the respondent to act will defeat
Petitioner’s right to relief. [(Bradshaw v. Duffy (1980) 104
Cal.App.3d 475, 481.)]
“Here Petitioner has not alleged any facts or law which
support his apparent claim that he is unlawfully detained
because Real Party in Interest and Respondent lack
personal and subject matter jurisdiction over him and the
judgment against him is void. Further, it is unclear what
his claim is.
“Petitioner has failed to make a prima facie showing of
specific facts which would entitle him to Mandate relief
under existing law. A Writ of Mandate issues only to
compel performance of an act that law specifically enjoins;
an applicant for writ must show that his right thereto is
clear and certain. [(City Council of Santa Monica v.
Superior Court of Los Angeles County (1962) 204
Cal.App.2d 68.)] As Petitioner has made no showing
whatsoever, the Petition for Writ of Mandate is hereby
denied.”
Noble filed a timely notice of appeal and requested a certificate of
probable cause, which was denied by the court.
2
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating he has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Noble the opportunity to
file his own brief on appeal, but he has not responded.
DISCUSSION2
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified the following possible issues that were considered in evaluating
the potential merits of this appeal:
1. Did Noble’s petition state a prima facie case for issuance of a writ of
mandate; and
2. Did the court err in not appointing counsel for Nobel.
We have reviewed the entire record as mandated by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Noble on this appeal.
2 The facts of the 1991 offense are not relevant to our review of the
record in the present case. We will not include the traditional statement of
facts.
3
DISPOSITION
The order denying Noble’s petition for writ of mandate is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
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