An order denying a petition for a writ of habeas corpus may not be appealed.  It is necessary to file an original petition in the reviewing court.[263]  In Gallardo, the defendant filed a petition for writ of habeas corpus in superior court, raising ineffective assistance of counsel.  The court issued an order to show cause, and then denied the petition.  The defendant appealed, and the court held that a denial of the habeas petition is not directly appealable; a new petition must be filed in the court of appeal.[264]  The court of appeals treated the appeal as a petition for a writ of habeas corpus, but warned it would not be so “accommodating” in the future. 

 

While not a jurisdictional rule, most courts of appeal will decline to address habeas corpus claims that could have been, but were not, raised first in a lower court.[265]  Jurisdiction over habeas corpus challenges to misdemeanor convictions arises in the first instance in the superior court, not the appellate division.[266]

 

When the appellate court issues an Order to Show Cause returnable in the trial court, the trial court may not deny the petition without holding an evidentiary hearing.[267]

[263] People v. Gallardo (1999) 77 Cal.App.4th 971.

[264] See Penal Code § 1506 (prosecution was given the right to appeal by statute, but no similar right was granted to the defendant); In re Clark (1993) 5 Cal.4th 750.

[265] In re Hillery (1962) 202 Cal.App.2d 293, 294; California Rules of Court, Rule 56(a)(1).

[266] In re Ramirez (2001) 89 Cal.App.4th 1312.

[267] Rose v. Superior Court (2000) 81 Cal.App.4th 564.

Other

CAL POST CON " HABEAS CORPUS " VENUE
Every judge in California has habeas corpus jurisdiction, and thus, no matter where the petitioner is held, the habeas corpus petition can be filed anywhere. The Rules of Court authorize (but do not require) a petition to be transferred to another county if the petition challenges a judgment in that county, or if the defendant challenges conditions of detention in that county. (Cal. Rules of Ct., rule 4.552(b)(2).) A petition challenging the denial of parole or a finding of unsuitability must be heard in the superior court which rendered the underlying judgment. (Cal. Rules of Ct., rule 4.552(c).) John Hamilton Scott, O.K., I Wrote It; Now Where Do I File It?, CALIFORNIA DEFENDER 74, 74 (Winter 2008-2009). Counsel must file the petition in the lowest available court. This gives the petitioner an additional chance of prevailing, since after a petition has been heard and denied, an additional petition raising the same claim can be filed only in higher courts. (Pen. Code 1475.) (Ibid.) The Appellate Division of the superior court does not have habeas corpus jurisdiction. It is prohibited from hearing habeas petitions by rule 4.552(d) of the Rules of Court. Therefore, jurisdiction to hear habeas corpus lies in the superior court (i.e., a single-judge writ court, whether the case is a felony or a misdemeanor. When a habeas corpus petition challenges the ruling of a superior court judge, it must be filed in the superior court, but it must be heard by a different judge. (Fuller v. Superior Court (2005) 125 Cal.App.4th 623.) (Ibid.) If the superior court denies a petition, counsel cannot appeal, but must file a new petition in the Court of Appeal. Although the new petition should set out the lower court proceedings, the review by the Court of Appeal is not of the order of the lower court denying relief, but of the challenged order or proceedings. (See In re Richard M. (1975) 14 Cal.3d 783, 789-790.)(Ibid.) If the Court of Appeal denies relief, a petition for writ of habeas corpus could he filed in the California Supreme Court. However, those who work for the court have made it clear that they much prefer that such cases be presented to them in a petition for review, rather than in a new habeas petition. (Ibid.)

CAL POST CON " HABEAS " DISCRETION NOT TO GRANT WRIT UNTIL LOWER COURT HAS FIRST ENTERTAINED THE PETITION
In re Hillery (1962) 202 Cal.App.2d 293, 294 [20 Cal.Rptr. 759] "There is no question but that this court has jurisdiction to issue the writ of habeas corpus (Const., art. VI, 4a). But this court has discretion to refuse to issue the writ as an exercise of original jurisdiction on the ground that application has not been made therefor in a lower court in the first instance. There is no showing in the petition that any extraordinary reason exists for action by this court, rather than by the Superior Court of the State of California, in and for the County of Kings. (2) Generally speaking, habeas corpus proceedings involving a factual situation should be tried in superior court rather than in an appellate court, except where only questions of law are involved. (24 Cal.Jur.2d, Habeas Corpus, 68, pp. 524-525.) (1b) The petitioner is in the county jail at Hanford, near the courtroom of the Superior Court of Kings County; he is detained by the Sheriff of Kings County, who is amenable directly to the orders of that court with respect to producing him for a hearing. In the circumstances, an application should first be made for a writ of habeas corpus to the Superior Court of the State of California, in and for the County of Kings. ( In re Browning, 99 Cal.App.2d 337 [221 P.2d 736]; In re Branham, 116 Cal.App. 59, 60 [2 P.2d 41]; In re Brune, 113 Cal.App. 254 [298 P. 80]; 1 Witkin, California Procedure (1st ed. 1954) Jurisdiction, 181, p. 447; Fricke, California Criminal Procedure (5th ed. 1959) Habeas Corpus, ch. 41, p. 567.)"