Lead Opinion
In December 2012, defendant Kenneth Elder filed what he titled a petition for a writ of habeas corpus (though invoking Pen. Code, § 1170.126)
Treating the filing as a recall petition under the statute,
Contending this ruling was an order after judgment affecting his substantial rights (§ 1237, subd. (b)), defendant filed an appeal.
There are only a limited number of relevant background facts beyond those stated in the introduction. We will incorporate them in the Discussion rather than set them out separately.
DISCUSSION
I. For Purposes of Section 1170.126, Unlawful Possession of a Firearm Can Constitute Being Armed During an Offense
As cross-referenced in section 1170.126, subdivision (e)(2), a commitment offense is ineligible for recall of sentence if “[d]uring [its] commission . . . , the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.” (§ 667, subd. (e)(2)(C)(iii), italics added.) The parties have not suggested that we should interpret “armed” any differently in this context than its interpretation for purposes of the firearm enhancement in section 12022:
With section 12022 as his springboard, defendant launches into a survey of cases applying the armed enhancement (that we do not need to recapitulate) in support of the unremarkable point that an enhancement of necessity does not have any independent existence and must as a result be tied to an underlying offense (People v. Izaguirre (2007)
Neither we nor the parties have identified any authority in which the prohibition in the arming enhancement on its use with offenses that have arming as an element arose in the context of an underlying conviction for unlawful gun possession; perhaps the point has seemed self-evident to prosecutors. However, our own research has identified People v. Cooper (1967)
Of some probative value on this issue is the somewhat analogous principle (not considered in the briefing) in the context of section 654 that, while applied in a collection of permutations of facts and sentences, unvaryingly finds that a felon’s possession of a gun at the instant of committing an offense (if no evidence of antecedent or subsequent possession) is the same act that underlies various gun enhancements, and cannot be the subject of additional punishment. (People v. Ratcliff (1990)
Obliquely invoking the interpretive principle that we cannot presume a drafter intended absurd results (In re D.B. (2014)
II. Circumstances Rendering a Commitment Offense Ineligible Are Not Subject to Pleading and Proof
Under the 2012 amendments, a third qualifying felony conviction is prospectively subject to a minimum indeterminate life sentence of 25 years only where a prosecutor pleads and proves that the prior convictions were for serious or violent felonies, and that a commitment offense is either a serious or violent felony, or otherwise comes within one of four qualifying classes of offenses. (§ 667, subd. (e)(2)(C).) On the other hand, the retrospective relief under section 1170.126 is conditioned upon an eligible commitment offense, which “the [trial] court shall determine” on “receiving a petition for recall of sentence under this section.” (§ 1170.126, subd. (f), italics added.) In rejecting an interpretation that a defendant becomes presumptively entitled to resentencing absent proof of dangerousness beyond a reasonable doubt, People v. Superior Court (Kaulick) (2013)
Defendant asserts section 1170.126 is “subject” to the requirement of pleading and proof in section 667. However, the former statute cross-references only “the offenses appearing in” (§ 1170.126, subd. (e)(2), italics added) the four subdivisions of section 667, subdivision (e)(2)(C), and not the text preceding them that specifies the procedural prerequisite of pleading and proof. (White, supra, 223 Cal.App.4th at pp. S26-527.)
Since we do not find anything ambiguous about the lack of a requirement for pleading and proof of ineligibility, defendant’s invocation of the “rule of lenity” does not have any relevance. In any event, the lenity rule is limited to situations in which intrinsic or extrinsic evidence of the Legislature’s intent results in reasonable interpretations that stand in equipoise. (People v. McCoy (2012)
It is also irrelevant that it is for a trier of fact (and not the trial court) to sustain a gun enhancement. We are not concerned here with an enhancement but with a criterion for mitigation of sentence.
For the same reason, defendant’s reliance on the principle in the line of cases that include Blakely v. Washington (2004)
We come to the gist of the case. The trial court, apparently on its own motion, cited from our summary of the evidence in defendant’s direct appeal from his conviction for his commitment offense.
Other than citing to the reporter’s transcript of his trial for testimony in support of his defense and for a couple of quotes from closing argument— none of which adds to or detracts from the summary in the opinion— defendant does not address whether this is a sufficient basis for a finding of ineligibility. Thus, he does not contend our summary of the evidence in the official transcript of the trial was inaccurate (and in any event our docket does not indicate he either petitioned for rehearing or review on this basis, despite having raised sufficiency of the evidence as an issue on appeal). The facts relevant to the claim of insufficiency of the evidence of possession are coextensive with those establishing whether or not he was armed with the guns. In these circumstances, the recitation of these facts in the opinion on defendant’s direct appeal are probative of the facts underlying the conviction. (Woodell, supra, 17 Cal.4th at pp. 460, 461.) The trial court thus properly found defendant ineligible for resentencing.
We assume the order is appealable, regardless of defendant’s eligibility for resentencing, and affirm it. (Alternately, we treat the appeal as a petition for a writ of habeas corpus and deny the petition.)
Hull, Acting P. J., and Robie, J., concurred.
Notes
Undesignated statutory references are to the Penal Code.
As defendant pursued relief from a final conviction pursuant to section 1170.126, we do not need to address the contretemps regarding whether a defendant whose sentence is not yet final on appeal is entitled to application of the revised sentencing provisions without filing a petition for recall pursuant to section 1170.126. (People v. Yearwood (2013)
The original sentencing judge (Hon. John V. Stroud (ret.)) was no longer available. (§ 1170.126, subds. (b), (j).)
Defendant filed a motion to take judicial notice of the record in his prior appeal; we granted the motion, though we construe it as one to incorporate the record by reference in the present proceedings.
The statute prescribes a one-year enhancement for “a person who is armed with a firearm in the commission of a felony . . . unless the arming is an element of that offense.” (§ 12022, subd. (a)(1), italics added.)
People v. Osuna (2014)
We note the recently decided People v. White (2014)
Again, Blakely and Osuna make the same points as White with respect to rejecting a requirement of pleading and proof. (Blakely, supra, 225 Cal.App.4th at pp. 1058-1059; Osuna, supra, 225 Cal.App.4th at p. 1033; see fn. 7, ante, at p. 1314.)
Defendant contends for the first time in his reply brief that Pepper v. United States (2011)
It is not clear whether the trial court admitted it as an exhibit or took judicial notice.
We also note that the opinion later cites evidence (in refuting a claim of insufficient evidence) that the owners referred to defendant as their tenant, who paid the rent and negotiated with them about improvements. (People v. Elder, supra, C020780.)
Concurrence Opinion
“Naturally I concur in the majority opinion I have prepared for the court” (People v. Jones (1998)
I write separately to explain my disagreement with the chosen disposition that my colleagues favor. Upon determining on the merits that a defendant is not eligible for relief under Penal Code section 1170.126,
Defendant’s Appeal Must be Dismissed
Section 1237 authorizes an appeal from any order made after judgment “affecting the substantial rights of the party.” (§ 1237, subd. (b).) Therefore, an untimely motion to recall a sentence under the general provision (§ 1170, subd. (d)(1)) is not appealable because a trial court has no jurisdiction to entertain such a motion in the first place, and its denial of the motion accordingly could not affect a substantial right of the defendant. (People v. Turrin (2009)
As we have concluded above, section 1170.126 confers the right to file a recall petition only on those who are not presently serving an indeterminate
Whether or not we summarily dismiss an appeal at the outset without an opinion, however, has no bearing on our disposition of an appeal after taking its merits under consideration. As in the analogous circumstance of determining whether a claim of instructional error raised initially on appeal affected the substantial rights of a defendant (§ 1259; People v. Andersen (1994)
Yet in the context of section 1170.126, the “crowdsourced” approach to this issue of substantial rights/appealability in the published, formerly published, and nonpublished cases is in accordance with that my colleagues embrace: the assumption that the denial of a petition is appealable regardless of a defendant’s eligibility, or the declaration that the appeal should be deemed a petition for a writ of habeas corpus. At the risk of taking on the
Driving this approach seems to be a concern that defendants are entitled to an accurate determination of their eligibility. But declaring the denial of a petition after review of the merits to be a nonappealable order subject to dismissal does not preclude relief for such defendants. Under the celebrated jurisdictional truism, an appellate court always has jurisdiction to determine its appellate jurisdiction. (Rescue Army v. Municipal Court (1946)
Nor is it improper to issue an opinion after concluding we do not have jurisdiction over the appeal. While “the [appellate] court should always dismiss an appeal from a nonappealable order, on its own motion, without determining the merits, for lack of appellate jurisdiction ... it does not always do so. Sometimes the court first determines the merits in an advisory opinion [as] a precedent, then dismisses the appeal.” (9 Witkin, supra, Appeal, § 87, p. 147, italics added; see id., § 345, p. 396 [as matter of policy, it has become an established practice to offer advisory opinion on important matter “where the appeal itself was improperly taken and is dismissed, but the reviewing court, lacking appellate jurisdiction to decide the merits of the particular proceeding, nevertheless renders what is in effect an advisory opinion to serve as a precedent” (italics added)].)
Both of the crowdsourced solutions have been severely criticized in the past. In the context of section 1237.5, the Supreme Court has condemned as lax the practice of entertaining appeals without certificates to further “judicial economy” in order to forestall petitions for writs of habeas corpus, declaring that this does not further judicial economy of the appellate system as a whole, which as a result is asked to review nonappealable orders and judgments. (Mendez, supra, 19 Cal.4th at pp. 1097-1098.) And Witkin gives a lengthy criticism of courts that “assume” jurisdiction without resolving the issue. (9 Witkin, supra, Appeal, § 87, p. 148.) As for treating the appeal as a writ
Our opinion having resolved adversely to defendant the statutory interpretation issue that possession of a gun includes being armed with a gun, and the legal issue of the proper scope of the record of conviction, defendant was ineligible for resentencing on the facts present in his record of conviction,and the denial of his petition could not as a result have affected his substantial rights. As in People v. Turrin, supra,
A petition for a rehearing was denied August 13, 2014, and on July 25, 2014, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied October 15, 2014, S220788. Cantil-Sakauye, C. J., did not participate therein.
Undesignated statutory references are to the Penal Code.
There is presently a debate whether the accurate determination that a petition is facially insufficient under section 1170.126 is appealable and therefore subject to summary dismissal without consideration of the merits of the appeal, which is pending in the California Supreme Court (People v. Wortham (2013)