Opinion
F076626
03-12-2020
THE PEOPLE, Plaintiff and Respondent, v. KHADIJAH GHAFUR, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. CF04908315)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Michael G. Idiart, Judge. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On August 17, 2017, the Fresno County Superior Court (Superior Court) denied appellant's motion to vacate the convictions she had sustained over a decade prior. (See Pen. Code, § 1473.7.) On September 25, 2017, appellant filed what the Superior Court treated as a motion to reconsider the August 17, 2017, ruling. On October 26, 2017, the Superior Court denied the motion for reconsideration. And on November 27, 2017, appellant appealed the October 26, 2017, ruling. Because we hold the challenged order is not appealable, we dismiss the appeal.
All subsequent statutory references are to this Code unless otherwise noted.
BACKGROUND
Appellant was convicted of over a dozen crimes in connection with her management role at a public charter school, Gateway Academy Charter School (Gateway). Evidence adduced at trial indicated that checks drawn on Gateway's account were used by appellant to repay loans unrelated to the school, to pay for real property in appellant's name, and to wrongfully satisfy a wage garnishment against appellant, among other improper uses. In August 2006, she was sentenced to 14 years in prison on these convictions.
We affirmed those convictions in a previous appeal. (See People v. Ghafur (Apr. 21, 2008, F051164) [nonpub. opn.].) Both parties agree the underlying facts of appellant's convictions are largely irrelevant to the issue raised on appeal. Therefore, we will simply incorporate by reference the facts recited in that opinion. (See In re Ruedas (2018) 23 Cal.App.5th 777, 783.)
On June 1, 2017, appellant filed a motion to vacate the judgment, relying primarily on section 1473.7. That statute generally permits a person who is no longer in criminal custody to move to vacate their conviction on newly discovered evidence of actual innocence. (§ 1473.7, subds. (a) & (a)(2).)
Appellant's petition contained about 50 pages of argument in total, including over 20 pages devoted to claims of ineffective assistance of trial and appellate counsel; and several pages alleging prosecutorial misconduct at her trial.
As for newly discovered evidence, the petition cited a June 8, 2004, audio recording of law enforcement personnel interviewing Gateway's Vice President, Kehinde Solwazi. The petition alleged the recording concerned the Gateway Board's approval of backpay for appellant, "which would have affected ten of the fourteen criminal counts [appellant] was wrongfully convicted of." Appellant asserted that she had a copy of the "audio tape" for the court's review "via an evidentiary hearing."
The petition also described a "video taping" of Mark Armstrong, "broadcasting what he would have testified to in the presence of the jury if he was subpoenaed by the Prosecution as he expected to be but ne[v]er was." According to the petition, Armstrong's statements on the video "supported" her "defense" and "verified the validity of Kehinde Solwazi's taping." Again, the petition said appellant would make the "taping" available for the court to review "via an evidentiary hearing."
Attached to the petition was a purportedly notarized document from Mark Armstrong made "under the oath of perjury and the Laws of the United States of America ...." The document said, among other things, that appellant had been "given permission" by Gateway's Board to "be paid back pay for prior work done for Gateway Academy." The document claimed that law enforcement testimony indicating Armstrong did not know about appellant's authorized backpay was incorrect.
Also attached to the petition was a notarized document signed by Christopher John Ferrell. The document begins with this statement: "My name is Christopher John Ferrell and I do hereby affirm that this is an accurate and true statement, to the best of my recollection, of what I would have disclosed if I had been called to testify in the trial of [appellant], principal and founder of the Gateway Academy Charter School in the Fresno Unified School District." The document described Ferrell's role as an accounting and financial consultant for Gateway. The document then said:
"To the best of my knowledge and recollection, neither the bank reconciliation or the audit processes revealed any expense items that were not eligible for payment and reimbursement under the charter school's funding guidelines. The auditors did have questions about the deferred compensation accounts for several of the officers including principal and founder Khadijah Ghafur. These questions/issues were resolved by a review of the executed Board Resolutions that memorialized the withholding and subsequent payments of the deferred salaries during the charter school's start-up. As such, this issue did not result in any audit findings nor indicate any misappropriations in the organization's expenditures."
The petition also described a "video taping" of one Patricia Bell Armstrong, who purportedly made "statements of support" for appellant.
Patricia Armstrong was the chief financial officer of a nonprofit organization appellant had created in the mid-1990's.
Motion for Appointment of Counsel
Appellant also filed a motion for appointment of counsel, concurrent with the filing of the motion to vacate.
Proceedings on Motion
In an order filed June 23, 2017, the Superior Court set a hearing on appellant's motion to vacate for August 17, 2017. The clerk mailed the order setting the hearing date to appellant on June 30, 2017. In a later filing, appellant acknowledged receiving the "Clerk's Certificate of Mailing" on August 7, 2017.
In the same order, the court denied her motion for appointment of counsel.
The Attorney General opposed appellant's motion to vacate.
Appellant did not appear at the August 17, 2017, hearing on her motion to vacate. The court ruled in her absence, concluding that most of appellant's claims of newly discovered evidence were in fact "veiled claim[s] for ineffective assistance of counsel." Additionally, appellant failed to show why she could not get a statement from Ferrell prior to judgment, given that he "was in the periodic employ of Gateway." The court concluded that "[i]t does not appear that any of the new evidence is in fact new," and that appellant's claims of ineffective assistance are not cognizable under section 1473.7. Accordingly, the court denied the motion.
On September 25, 2017, appellant filed several documents, including one captioned "Hearing De Novo of Notice of Motion to Vacate Judgment Based Upon Newly Discovered Evidence Pursuant to Penal Code §1473.7 and Senate Bill 1134, Assembly Bill's [sic] 1901 and 813." The filing resubmitted the arguments made in her motion to vacate, again relying on the 2004 recording of Solwazi, the "video taping of Mark Armstrong's testimony" and the written document he submitted, the Ferrell document, and the "video taping" of Patricia Bell Armstrong.
In a simultaneous filing, appellant claimed she was "never notified ... to be present" at the August 17, 2017, hearing on her motion; that she did not receive the clerk's certificate of mailing concerning the court's June 23, 2017, ruling until August 7, 2017; that she did not receive a copy of the order denying her motion to vacate and "had to go on line in [o]rder to ascertain the status of the present case." The filing also stated that appellant lacked the financial means to travel to California for a hearing; and that she was "renew[ing]" her "motion for the appointment of counsel." This filing concluded with the following text: "I swear under the penalty of perjury that all of the information in this motion is true, correct and complete, and those matters stated on information and belief, I believe them to be true." Appellant's signature appears thereafter.
In a written ruling filed October 26, 2017, the court denied appellant's September 25, 2017, motion, which it deemed to be a motion for reconsideration. The court noted that the motion for reconsideration had been filed by a prison inmate who was not an attorney. The court also observed that appellant's declarations were not properly verified as having been executed within the state of California or "under the laws of the State of California." (See Code Civ. Proc., § 2015.5.)
The court declined to reconsider its prior ruling because, contrary to appellant's claims, she had been notified of the August 17, 2017, hearing date and time. And while she was not served with a copy of the subsequent order denying her motion, her filing shows she received "actual notice" of the denial. The court observed defendant reasserted her claim to lack the financial means to retain an attorney or travel to California. The court said that "[n]one of these claims constitute reasons for the Court to reconsider its ... denial ...." Appellant's remedy was to appeal the denial.
Appellant filed a notice of appeal on November 27, 2017, appealing the Superior Court's October 26, 2017, order.
DISCUSSION
I. The Superior Court's October 26, 2017, Order is not Appealable
The Attorney General argues the October 26, 2017, order is not appealable. We agree.
By statute, a defendant may appeal "[f]rom any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b).) However, case law has qualified the otherwise broad reach of this rule. (People v. Thomas (1959) 52 Cal.2d 521, 527.)
Notwithstanding section 1237, "[o]rdinarily no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. [Citations.]" (People v. Thomas, supra, 52 Cal.2d at p. 527.) "In such a situation[,] appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.]" (Ibid.)
The Attorney General argues this principle requires dismissal of the appeal. Appellant counters that, unlike Thomas, the ruling on her motion to vacate in the present case is appealable. (§ 1473.7, subd. (f).) That is true, but irrelevant. Appellant has not appealed the ruling on her motion to vacate; she appealed the ruling on her motion for reconsideration. The only question is whether that latter ruling is appealable.
The parties do not dispute that the court's August 17, 2017, order denying the motion to vacate was appealable. (See § 1473.7, subd. (f).) However, appellant did not appeal that order.
And even if she had appealed the August 17, 2017, order instead, it would have been untimely. (See Cal. Rules of Court, rule 8.308(a) [Except as otherwise provided by law, a notice of appeal must be filed within 60 days after the making of the order being appealed].)
It may be noted that the principle described in Thomas refers to rulings on motions to vacate, while the present case involves a motion to reconsider an order on a motion to vacate. However, this difference does not at all weaken the considerations described in Thomas. Permitting appeal of an order denying reconsideration would "virtually give defendant two appeals from the same ruling, and since there is no time limit within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.]" (People v. Thomas, supra, 52 Cal.2d at p. 527.) Additionally, the ability to appeal the denial of the motion to vacate itself (§ 1473.7, subd. (f)) is an adequate remedy.
In a similar vein, courts have held "[a]n order made after judgment is not appealable where the motion merely asked the court to repeat or overrule a former ruling on the same facts. [Citation.]" (People v. Rick (1952) 112 Cal.App.2d 410, 412; see also People v. De Leon (1965) 236 Cal.App.2d 530, 532-533 [dismissing appeal from "order denying motion for new trial upon reconsideration"].) A contrary rule would effectively allow " 'two appeals from the same ruling, and would, in some cases, have the effect of extending the time for appealing, contrary to the intent of the statute.' [Citation.]" (People v. Palmer (1942) 49 Cal.App.2d 579, 580.)
In the civil context, most courts have held that orders on motions for reconsideration are never appealable, even when based on new facts or law. (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1576; In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81.) Again, this rule is designed to prevent " 'two appeals from the same decision' " and avoid granting " 'unwarranted extension[s] of time to appeal. [Citations.]' [Citation.]" (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459.)
Here, we agree with the Superior Court's classification of appellant's September 25, 2017, filings as a motion to reconsider. Accordingly, to avoid permitting two appeals from the same decision and unwarranted extensions of the time to appeal, we hold the Superior Court's denial of the motion to reconsider was not appealable and dismiss the appeal.
Appellant disagrees, pointing out that the motion was captioned, "Hearing De Novo." But whether a filing constitutes a motion for reconsideration depends on its substance, not its title. (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1470-1471.) " ' "The nature of a motion is determined by the nature of the relief sought, not by the label attached to it." ' " (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43.)
It appears appellant is also contending that the Superior Court treated the September 25, 2017, filings as a new motion to vacate, rather than a motion to reconsider. However, the Superior Court's ruling makes clear it considered appellant's motion to be one for reconsideration.
DISPOSITION
The appeal is dismissed.
/s/_________
POOCHIGIAN, Acting P.J. I CONCUR: /s/_________
DETJEN, J. SMITH, J., Dissenting.
I disagree with the majority's conclusion that the trial court's order of October 26, 2017, is not an appealable order. I would find the trial court's denial of Ghafur's September 25, 2017 motion to reconsider appealable. Nonetheless, I would affirm the trial court's denial of Ghafur's original August 17, 2017 motion to vacate convictions because, although the court erred in proceeding in appellant's absence, that error was harmless. I would therefore also affirm the trial court's denial of Ghafur's subsequent motion for reconsideration.
Appealability and Timeliness of Appeal
The majority contends that the motion for reconsideration was not an appealable order. Even though the notice of appeal was filed within 60 days of the filing of the order denying the motion for reconsideration, they contend no timely appeal from an order that can be appealed from has been filed. (Maj. opn. ante, at p. 2.)
I view the order on the motion for reconsideration as an appealable order. The analysis has two steps. First, as stated in People v. Castello (1998) 65 Cal.App.4th 1242, the limits on motions for reconsideration set forth in Code of Civil Procedure section 1008, such as the rule that the motion must be made within 10 days after service of the order to be challenged, simply do not apply in criminal cases. Nor is it the case that this statute is the font of the superior courts' power to entertain motions for reconsideration. It should not be supposed that the trial court lacks this power where the statute does not apply. Instead, a trial court inherently has the power to reconsider its orders. (Castello, at pp. 1246-1250.)
Second, the rule for criminal cases is that, for defendants, the appealable actions of a trial court are: final judgments, orders specifically made appealable by statute, and "any order made after judgment, affecting the substantial rights of the party." (Pen. Code, § 1237, subd. (b).) An order denying reconsideration following an order denying a motion made under section 1473.7 is an order after judgment affecting the defendant's substantial rights: Section 1473.7 created a statutory right to have a conviction vacated under the circumstances named in the statute, and that right undoubtedly is substantial. An order denying reconsideration of an order denying a claim for relief under section 1473.7, undoubtedly affects defendant's substantial rights. Therefore, I view the order denying Ghafur's motion for reconsideration appealable under section 1237, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
The majority argues that the order denying reconsideration is not appealable in light of People v. Thomas (1959) 52 Cal.2d 521, which created an exception to the section 1237 rule that a post-judgment order affecting a defendant's substantial rights is appealable. (Maj. opn. ante, at pp. 6-7.) Thomas states, as an exception to this rule, that "[o]rdinarily no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment," as this would duplicate the remedy of an appeal from the judgment. (Thomas, at p. 527.) By its own terms, however, this exception does not apply to Ghafur's appeal from the order denying her motion for reconsideration, which qualifies as a unique type of motion to vacate a judgment of conviction. Ghafur's original motion for section 1473.7 relief sought to vacate a judgment of conviction, but the denial of that motion is expressly made appealable by section 1473.7 itself, and its appealability, unlike the motion at issue in Thomas, is not in question. Thus, the question of appealability of Ghafur's motion for reconsideration is properly resolved under section 1237, subdivision (b) and not pursuant to the exception spotlighted in Thomas.
The court denied Ghafur's motion for reconsideration on October 26, 2017, and Ghafur filed her notice of appeal within 60 days, on November 27, 2017, so the appeal is timely at least as to the denial of reconsideration. (The majority does not argue that the filing of the motion for reconsideration itself was untimely.)
The substance of the appeal, however, is not limited to the procedural question of whether the court should have reconsidered its earlier order; it extends also to the substantive question of whether the denial of the earlier order was erroneous in the first place and should be declared so by us. In other words, the question is not just whether we should reverse the trial court's refusal to reconsider its denial of Ghafur's section 1473.7 motion and direct the trial court to reconsider that denial on remand. It is whether we should reverse that initial denial ourselves now and either direct the trial court to grant the original motion, or pursuant to the terms of section 1473.7, subdivision (b), direct it to conduct a hearing in Ghafur's presence (or in her absence at her request and with good cause).
What effect, then, do the filing and appealable denial of a timely motion for reconsideration have on the time to appeal from the underlying order? To put this question another way, does the appealable matter in a timely appeal from an appealable order denying reconsideration include the substance of the original order the court declined to reconsider, even if the appeal would have been untimely as to that order if no motion for reconsideration had been filed?
In Passavanti v. Williams (1990) 225 Cal.App.3d 1602, a civil case, it was held that if a motion sought reconsideration of a final judgment, then the time to appeal from the judgment would not be affected by the filing of, or the ruling on, the motion for reconsideration. The time to appeal from the judgment would still run from the filing or service of the judgment, and the merits of the judgment would not be before the appellate court in a timely appeal from the order denying reconsideration if that appeal were filed after the deadline for appealing from the judgment directly. (Id. at pp. 1605-1609.)
But if the motion sought reconsideration of an appealable order not amounting to a final judgment, then the denial of the original motion could be reviewed as part of an appeal from the denial of reconsideration. If appeal from the latter is timely, then the fact that the original order was never appealed from is irrelevant to the question of the appellate court's jurisdiction to examine the underlying matter. (Passavanti, supra, 225 Cal.App.3d at pp. 1605-1609.)
Here, by the same logic, the timing of Ghafur's appeal from the denial of reconsideration—not her failure to appeal directly from the original denial of section 1473.7 relief—controls our jurisdiction to review the underlying matter. The trial court's order denying the section 1473.7 motion was not a final judgment. Rather, it was a rejection of an attempt to alter a final judgment and it was made appealable by virtue of section 1473.7, subdivision (f). The denial of the motion for reconsideration thus was an appealable order (under § 1237, subd. (b)) arising from an order not amounting to a final judgment. The merits of Ghafur's original motion may thus properly be considered in this appeal.
Issues Not Addressed by Majority
Because the majority dismisses this appeal, the merits—including issues relating to timeliness and scope of the appeal, the manner in which the original hearing was conducted, and Ghafur's requests for appointment of counsel—remain unresolved.
The People argue that the appeal is untimely. The order denying Ghafur's original motion was immediately appealable. (§ 1473.7, subd. (f).) It was filed on August 17, 2017. In a criminal case, a losing party has 60 days to file a notice of appeal. (Cal. Rules of Court, rule 8.308(a).) Ghafur's notice of appeal was filed on November 27, 2017, more than a month after the end of the 60-day period running from August 17, 2017. The People contend that this means we have no jurisdiction to entertain an appeal from that order. For the reasons stated above, I disagree.
Ghafur also requested the appointment of counsel in her original motion and motion for reconsideration, and claims error in the court's denials. I would agree with the trial court that section 1473.7 does not authorize the appointment of counsel to represent her under the circumstances of this case.
Ghafur was not in attendance at the hearing held August 17, 2017, when the court denied her initial motion. Under section 1473.7, subdivision (d) the court may hold the hearing without the personal presence of the moving party provided that it finds good cause for the moving party's absence. Ghafur cites to this section in her claim of error. I agree the trial court erred in conducting proceedings in her absence as there were no such findings made.
As an error of state law, any error in holding the hearing in Ghafur's absence was prejudicial and reversal would be required only if there is a reasonable probability that she would have obtained a better outcome had the error not been made. (People v. Watson (1956) 46 Cal.2d 818, 836.) I would find that the error was harmless as Ghafur failed to proffer "[n]ewly discovered evidence of actual innocence" that "requires vacation of the conviction or sentence as a matter of law or in the interests of justice." (§ 1473.7, subd. (a)(2).) It is not reasonably probable that a hearing in which Ghafur was present and produced the evidence disclosed in her written motion would have led to a better outcome for her.
While I conclude we have jurisdiction to hear Ghafur's appeal and resolve the merits, I would affirm the trial court's denial of both the motion to vacate conviction and the motion for reconsideration.
/s/_________
SMITH, J.