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) 42 Cal.4th 126, 134 [64 Cal.Rptr.3d 148, 164 P.3d 578]; People v. Wims (1995) 10 Cal.4th 293, 304 [41 Cal.Rptr.2d 241, 895 P.2d 77]), concluding on this basis that ineligibility for resentencing for being “armed” therefore must require something beyond the substantive offense of possession itself. The illogic of this line of
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) 256 Cal.App.2d 500 [64 Cal.Rptr. 282], which concluded that an analogous statute imposing a minimum indeterminate term for a defendant armed during the commission of an offense (former § 3024, as amended by Stats. 1957, ch. 1617, § 3, pp. 2964-2965) cannot augment the penalty otherwise provided for a conviction for being a felon in possession of a firearm, because “an integral part of [former] section 12021 is being armed with a deadly weapon.” (Cooper, supra, at p. 505, italics added.)
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) 223 Cal.App.3d 1401, 1412 [273 Cal.Rptr. 253].)
Obliquely invoking the interpretive principle that we cannot presume a drafter intended absurd results (In re D.B. (2014) 58 Cal.4th 941, 945-946 [169 Cal.Rptr.3d 672, 320 R3d 1136]), defendant argues in his reply brief that such an interpretation would render ineligible any defendant who “step[ped] near a firearm,” and the drafters could not have intended that “every prisoner convicted of gun possession would be categorically excluded from resentencing.” This rhetorical hyperbole does not withstand analysis. A conviction for possession of a gun must be based on intentional actual or constructive possession of the gun (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 & fn. 3 [125 Cal.Rptr.3d 903]), not merely walking nearby (id. at p. 1417). Moreover, although we will not hazard a definitive effort to parse the sheep from the goats (see Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 328 [27 Cal.Rptr.3d 10]), not every commitment offense for unlawful possession of a gun necessarily involves being armed with the gun, if the gun is not
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) 215 Cal.App.4th 1279 [155 Cal.Rptr.3d 856] (Kaulick) notes it is determinative that the drafters omitted any requirement for the pleading and proof of dangerousness in the latter statute. (Id. at p. 1303, fn. 26; see id. at pp. 1298-1299, fn. 21 [dictum; “[b]y its terms” § 1170.126 does not require pleading and proof of circumstances rendering commitment offense ineligible]; accord, White, supra, 223 Cal.App.4th at p. 527.) Therefore, section 1170.126 does not of itself
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) 208 Cal.App.4th 1333, 1339, fn. 6 [146 Cal.Rptr.3d 469].) Such circumstance does not exist in this context.
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) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] is misplaced. As we noted in People v. Benitez (2005) 127 Cal.App.4th 1274, 1277-1278 [26 Cal.Rptr.3d 262], under these cases any fact increasing punishment beyond the statutory maximum authorized on facts necessarily found in a jury’s verdict must itself be the subject of a jury finding, but this does not apply to facts rendering a defendant ineligible for mitigation of a punishment that the facts underlying the verdict otherwise authorize. (Accord, Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305, citing Dillon v. United States (2010) 560 U.S. 817, 828-829 [177 L.Ed.2d 271, 130 S.Ct. 2683]; Blakely, supra, 225 Cal.App.4th at p. 1060; Osuna, supra, 225 Cal.App.4th at pp. 1039-1040 [both citing Kaulick].)
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.
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) 213 Cal.App.4th 161, 168 [151 Cal.Rptr.3d 901] (Yearwood) [no retroactive effect]; People v. Conley (2013) 215 Cal.App.4th 1482 [156 Cal.Rptr.3d 508], review granted Aug. 14, 2013, S211275 [presenting issue of retroactivity].)
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) 225 Cal.App.4th 1020, 1030-1032 [171 Cal.Rptr.3d 55] (petn. for review den. July 9, 2014, S218183) (Osuna) is in agreement: “The two are not the same.”
We note the recently decided People v. White (2014) 223 Cal.App.4th 512, 519 [167 Cal.Rptr.3d 328], review denied April 30, 2014, S217030 (White) also finds unlawful gun possession can be an ineligible commitment offense (via a different route of analysis based on the arguments in that case), and also makes the point that if constructive possession was the basis for the prior conviction, not every conviction for possession will establish that a defendant was armed (although the defendant at issue had been carrying the gun and thus indisputably was armed) (White, at pp. 524-525). People v. Blakely (2014) 225 Cal.App.4th 1042, 1052-1053 [171 Cal.Rptr.3d 70] (petn. for review den. July 9, 2014, S218914) (Blakely) and Osuna, supra, 225 Cal.App.4th at page 1029 are also in accord.
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) 562 U.S. 476 [179 L.Ed.2d 196, 214, 131 S.Ct. 1229] has declared this exception for mitigation of punishment does not apply to “ ‘plenary resentencing proceedings,’ ” a category in which he contends section 1170.126 belongs. He does not give any good cause for failing to cite this existing authority in his opening brief. This forfeits plenary consideration of it. (Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061, fn. 7 [142 Cal.Rptr.3d 414]; People v. Baniqued (2000) 85 Cal.App.4th 13, 29 [101 Cal.Rptr.2d 835].) We accordingly
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 in Part
“Naturally I concur in the majority opinion I have prepared for the court” (People v. Jones (1998) 17 Cal.4th 279, 319 [70 Cal.Rptr.2d 793, 949 P.2d 890] (cone. opn. of Mosk, J.)); “[obviously, I concur fully in the majority opinion I have authored” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 378 [58 Cal.Rptr.2d 458, 926 P.2d 438] (conc. opn. of Chin, J.)).
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) 176 Cal.App.4th 1200, 1208 [98 Cal.Rptr.3d 471].) Similarly, a petition for a writ of coram nobis that is facially insufficient does not vest a trial court with jurisdiction to grant relief; the denial of such a deficient petition as a result cannot affect the petitioner’s substantial rights, and the order is not appealable. (People v. Thornton (1965) 233 Cal.App.2d 1, 2 [43 Cal.Rptr. 691].)
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) 26 Cal.App.4th 1241, 1249 [32 Cal.Rptr.2d 442] [must initially determine if instructional error prejudicial, which then allows consideration of merits and reversal of conviction]), we have at least the appellate jurisdiction to ascertain whether the trial court properly denied a recall petition under section 1170.126 in order to determine whether the denial affected a defendant’s substantial rights. Another analogous circumstance arises where either a trial court has improvidently issued a certificate of probable cause for a noncognizable issue or a defendant has appealed what is in fact an issue requiring a certificate of probable cause; an appellate court addresses the merits of whether the issue requires a certificate, and then dismisses the appeal rather than affirms the judgment. (People v. Mendez (1999) 19 Cal.4th 1084, 1099-1100 [81 Cal.Rptr.2d 301, 969 P.2d 146] (Mendez); People v. Panizzon (1996) 13 Cal.4th 68, 89 [51 Cal.Rptr.2d 851, 913 P.2d 1061] [both dismissing appeal for failure to comply with § 1237.5 after determining that challenge to negotiated sentence is in fact a challenge to the plea]; People v Hernandez (1992) 6 Cal.App.4th 1355, 1361 [8 Cal.Rptr.2d 324] [dismissal of appeal after determining on merits that trial court erroneously issued certificate].)
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) 28 Cal.2d 460, 464 [171 P.2d 8] [cited in People v. Zarazua (2009) 179 Cal.App.4th 1054, 1062 [101 Cal.Rptr.3d 902]]; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 302 [109 P.2d 942].) As this principle is explained, “[A] tribunal has the duty, and therefore the . . . power (jurisdiction), to decide in the first instance whether it has jurisdiction of the subject matter .... This process may involve the determination of jurisdictional questions of law.” (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 339, p. 963, italics added (Witkin).) Thus, except in the presumably narrow class of cases in which a trial court accurately determines that a petition on its face rendersa defendant ineligible, we will always have jurisdiction to consider whether the law and facts properly support the denial of the petition.
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, 176 Cal.App.4th 1200, our selection of disposition here should be dismissal of the appeal.
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) 220 Cal.App.4th 1018 [163 Cal.Rptr.3d 654], review granted Jan. 15, 2014, S214844; People v. Leggett (2013) 219 Cal.App.4th 846 [162 Cal.Rptr.3d 205], review granted Dec. 18, 2013, S214264; Teal v. Superior Court (2013) 217 Cal.App.4th 308 [158 Cal.Rptr.3d 446], review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941 [157 Cal.Rptr.3d 315], review granted July 31, 2013, S212017; People v. Haynes (2014) 225 Cal.App.4th 997 [170 Cal.Rptr.3d 774], review granted July 9, 2014, S218982).