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Filed 5/20/21 P. v. Batiste CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

WALLACE BATISTE,

Defendant and Appellant.

A160838

(City & County San Francisco

Super. Ct. No. 224334)

MEMORANDUM OPINION

The facts relevant to disposition of the present appeal are simply 

stated. Upon remand to the superior court following the reversal of his 

conviction, defendant Wallace Batiste pled guilty to one count of robbery 

(Pen. Code, § 211) pursuant to a negotiated disposition under which the court 

promised to grant a certificate of probable cause that would enable him to 

challenge on appeal the denial of his motion to dismiss the information for 

the asserted denial of his right to a speedy trial. Defendant was sentenced (to 

five years in prison, deemed served) and the court signed a certificate of 

probable cause. On appeal defendant contends that his guilty plea was 

improperly induced by the promise to issue a certificate of probable cause on 

what the parties now recognize is a nonappealable issue. (People v. 

Hernandez (1992) 6 Cal.App.4th 1355, 1357.) The Attorney General agrees 

and acknowledges that “the judgment should be reversed and the case should 
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be remanded to the superior court to permit [defendant] to move to withdraw 

his guilty plea.”

Recognizing that the speedy trial issue is not appealable, defendant 

initially moved for summary reversal so that he could return to the superior 

court and move to withdraw his plea. In response to this court’s request for a

response to the motion, the Attorney General responded that defendant was 

not entitled to summary reversal but that “[w]ith respect to the merits of 

appellant’s claim, respondent agrees that he will be entitled to relief on the 

merits when his appeal is decided.” Based on this response, a panel of this 

court issued the following order: “Respondent having been given the 

opportunity to respond to appellant’s motion for summary reversal in 

compliance with Government Code section 68081, and having acknowledged

that the motion is well taken and should be granted, the motion is granted 

and the matter is remanded to the Superior Court to permit appellant to 

move to withdraw his guilty plea.” The Supreme Court then granted the 

People’s petition for review and transferred the case back to this court with 

directions to vacate that order “and consider whether the summary reversal 

procedure used is appropriate in light of California Constitution, article VI, 

sections 3 and 14, People v. Brigham (1979) 25 Cal.3d 283, Government Code 

section 68081, and Cal. Rules of Court, rule 8.200(a).” Having further 

considered this issue in light of the cited authorities, as directed, we conclude 

once again that having given the Attorney General the opportunity to 

respond to defendant’s motion and the Attorney General having responded 

that defendant was entitled to have the matter remanded to the superior 

court, nothing in any of the cited materials precluded summary disposition to 

accomplish what both parties agreed should occur.
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Section 3 of article VI of the California Constitution reads in part, 

“Concurrence of 2 judges present at the argument is necessary for a 

judgment.” People v. Brigham, supra, 25 Cal.3d 283 held this provision 

recognizes a right to oral argument and prevented an appellate court from 

affirming a conviction without affording the defendant an oral argument on 

appeal. The court held, “the Court of Appeal cannot summarily affirm a 

criminal conviction without first holding oral argument.” (Id. at p. 288.) Even 

though the appellate court considered the defendant’s contention “ ‘as a 

practical matter hopeless,’ ” “the appellate court had an obligation to hear the 

arguable argued.” (Id. at p. 289.) The court did not hold that there must be 

oral argument to consider a matter that is not disputed. We would view this 

issue differently if the Attorney General indicated he disputed some aspect of 

the appellant’s position on the merits. Brigham involved a situation in which 

the appellant’s position was a least “theoretically arguable.” (Ibid.) The 

Attorney General’s position here does not meet even that standard. This is 

not a matter of mere pragmatism. “The law neither does nor requires idle 

acts.” (Civ. Code, § 3532.) Moreover, by acknowledging that defendant was 

entitled to the remand he requested, the Attorney General recognized there 

was no need for oral argument and should be understood to have implicitly 

waived the right to a pointless argument. 

Section 14 of article VI of the California Constitution requires appellate 

decisions to be in writing “with reasons stated,” with which the remand order 

complied. Government Code section 68081 requires that appellate decisions 

not be based on grounds to which parties have not had “an opportunity to 

present their views on the matter through supplemental briefing.” Here, the 

Attorney General was given the opportunity and did in fact express its views 

before the court granted the summary reversal. California Rules of Court, 
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rule 8.200(a) specifies the briefs that parties must and may file on appeal 

without further permission, but the rule does not purport to require the 

submission of a full set of briefs when it is disclosed by motion that the 

parties are in agreement on a particular matter. Here the views of the 

Attorney General were obtained and when it appeared that both parties 

agreed the case had to be remanded to the trial court, and this court agreed, 

there was nothing in any of these authorities that precluded prompt and 

efficient disposition in accordance with the views of all parties, nor was there 

any reason to protract the proceedings further.

In all events, following remand from the Supreme Court, we granted 

defendant’s unopposed motion for calendar preference and treated his prior 

memorandum as his opening brief on appeal; the Attorney General filed a 

response concluding that “the judgment should be reversed and the case 

should be remanded to the superior court to permit [defendant] to move to 

withdraw his guilty plea,” and both parties waived oral argument. Therefore, 

because, as the Attorney General states, defendant “correctly argues that his 

guilty plea was improperly induced by the trial court’s promise to issue a 

certificate of probable cause on a nonappealable issue,” the matter must be 

remanded to permit defendant to move to withdraw his plea.

Disposition

The judgment is reversed and the case is remanded to the superior 

court to permit defendant to move to withdraw his guilty plea. If defendant

fails to do so within 30 days of the issuance of the remittitur, the judgment 

shall be reinstated.

POLLAK, P. J.

I CONCUR:

STREETER, J. 
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BROWN, J., Concurring.

I join fully in the final paragraph of the majority opinion and the 

disposition. However, I believe that People v. Brigham (1979) 25 Cal.3d 283 

and California Rules of Court, rule 8.200 foreclose the approach originally 

taken by this panel—as pragmatic as that approach may have been in light of 

the Attorney General’s ultimate concession that Batiste is entitled to relief on 

the merits. Unlike the majority, I do not believe the procedural requirements 

of Brigham and the Rules of Court silently admit of exceptions when the 

parties agree on the merits. Nor can I agree that the Attorney General 

implicitly waived his right to oral argument when he filed his response on the 

merits, particularly when this court ordered the merits response after 

receiving the Attorney General’s procedural objection to the motion for 

summary reversal, and when the Attorney General’s merits response 

reiterated his initial position objecting to the summary reversal process. 

Notwithstanding these disagreements, however, I agree with the majority 

that the case must now be remanded to permit Batiste to withdraw his guilty 

plea.

BROWN, J.