Opinion
D072443 D072355
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES RAY MOORE, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CF5728 & 14304) CONSOLIDATED APPEALS from orders of the Superior Court of Imperial County, Diane B. Altamirano, Judge. Motion to dismiss appeal denied; orders affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
In 1991 and 1998 James Ray Moore pleaded guilty and no contest, respectively, to felony first degree residential burglary in violation of Penal Code section 459. The trial court denied Moore's petitions to reduce these felony sentences to misdemeanors under Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47, or the Act). Moore's sole contention on appeal is that he was denied his Sixth Amendment right to counsel and the opportunity to be present at the hearing to show he was eligible for Proposition 47 relief.
Statutory references are to the Penal Code unless otherwise indicated.
The People have moved to dismiss the appeal on grounds that the order challenged is not a final, appealable order and the issue is unripe. Moore responded to the People's motion, arguing the appeal is ripe because the trial court lost jurisdiction to decide his reconsideration motion upon filing an appeal. We deny the People's motion to dismiss the appeal. We reject Moore's arguments otherwise and affirm the orders denying both Proposition 47 petitions.
FACTUAL AND PROCEDURAL BACKGROUND
In April 1991, Moore pleaded guilty in Imperial County Superior Court Case No. 14304 to first degree burglary in violation of section 459. Under the terms of the plea agreement, the trial court sentenced Moore to the upper term of six years. In December 1998, Moore pleaded no contest in Imperial County Superior Court Case No. CF5728 to first degree burglary in violation of section 459. Under this plea agreement, Moore was again sentenced to the upper term of six years.
In May 2017, Moore, representing himself, petitioned for recall of his sentences and requested that both felony convictions be reduced to misdemeanors pursuant to the Act. Moore stated that second degree burglary encompassed both vacant homes or businesses and asked the court to consider whether his burglaries were wobblers because they either involved uninhabited buildings or commercial establishments. In opposition, the People pointed out that Moore had pleaded guilty to first degree residential burglary, which was not an enumerated felony under Proposition 47. They argued he failed to make out a prima facie case for Proposition 47 relief.
The record on appeal includes the People's opposition to Moore's petition for Case No. CF5728 but not a separate opposition to Case No. 14304. Moore's reply papers, however, addressed both cases, suggesting the People opposed both of Moore's petitions.
The trial court scheduled a Proposition 47 eligibility hearing for May 31, 2017. On May 21, 2017, Moore, representing himself, filed a request to appear telephonically for the scheduled hearing. The court granted his request and mailed Moore an order authorizing telephonic access.
The hearing on Moore's petitions took place on May 31, 2017, in Moore's absence because the prison did not produce him telephonically. After hearing from the People, the court denied both petitions, finding Moore's section 459 residential burglary convictions were not eligible for relief under Proposition 47.
On June 19, 2017, Moore filed reply papers with an accompanying declaration in both cases, addressing the court's order. He argued (1) he did not receive any notice of permission to appear by telephone until the night before the hearing, which did not leave adequate time to coordinate the call with the prison staff; and (2) he did not receive notice of the People's opposition to the Proposition 47 hearing until about a week after the hearing. That same day, Moore filed a notice of appeal in Case No. 14304.
Moore's matter, which the court treated as a motion for reconsideration, came back on calendar on July 7, 2017, and July 17, 2017, before different superior court judges. Those judges ordered the matter to be heard by Judge Diane B. Altamirano, who originally ruled on Moore's Proposition 47 petition. On July 7, 2017, Moore filed a notice of appeal in case No. CF5728 from the order denying his Proposition 47 petition. On July 31, 2017, Judge Altamirano ordered Moore's reconsideration request taken off calendar.
We ordered Moore's appeals consolidated for review.
DISCUSSION
I. Motion to Dismiss Appeal
The People have moved to dismiss Moore's appeal on grounds the matter is unripe for review. They maintain section 1237, subdivision (b) and People v Gallardo (2000) 77 Cal.App.4th 971, 980, do not authorize Moore's appeal because his reconsideration request remains pending in the trial court and thus his substantial rights are not affected. The People further assert that the remedy sought by Moore, reconsideration of his Proposition 47 eligibility, remains available should he ask the trial court to put his reconsideration request back on calendar.
Section 1237 provides that a defendant may take an appeal "[f]rom any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b).)
Moore points out in opposition that the filing of his appeals on June 19, 2017, and July 7, 2017, divested the trial court of jurisdiction to hear his request for reconsideration and any action by the court while the appeal is pending would be null and void. Moore relies primarily on People v Perez (1979) 23 Cal.3d 545, and People v Alanis (2008) 158 Cal.App.4th 1467, both of which state that the "filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur." (Perez, at p. 554; see also Alanis, at p. 1472.)
Moore's argument has merit. The People fail to consider the well-settled principle that filing a valid notice of appeal vests jurisdiction of the matter in the appellate court until determination of the appeal and issuance of the remittitur. (People v Gallardo, supra, 77 Cal.App.4th at p. 980; People v Perez, supra, 23 Cal.3d at p. 554.) This rule protects the appellate court's jurisdiction by protecting the status quo so that an appeal is not rendered futile by altering the appealed judgment. (People v. Espinoza (2014) 229 Cal.App.4th 1487, 1498; People v. Alanis, supra, 158 Cal.App.4th at 1472, quoting Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089.) In such circumstances, the trial court lacks jurisdiction to make any order affecting a judgment. (Alanis, at p. 1472.)
Though there is an exception to that rule (see Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1835 [court may recall and resentence under section 1170, subdivision (d) within 120 days of the original commitment]), it does not apply here.
These circumstances fall squarely within these settled principles. The filing of Moore's appeals divested the trial court of jurisdiction until the determination of this appeal and issuance of the remittitur. (People v Perez, supra, 23 Cal.3d at p. 554.) Thus, the remedy sought by Moore does not remain available in the trial court. In fact, any definitive action by the trial court on his request could render this appeal futile and would be void. We deny the People's motion to dismiss Moore's appeal.
II. Proposition 47
Our conclusions turn in part on the procedural context of Moore's Proposition 47 petition, thus we first review that scheme.
Proposition 47, approved by California voters in November 2014 and codified as section 1170.18, reclassified certain nonserious, nonviolent theft- and drug-related crimes from felonies to misdemeanors, and added several new provisions. (People v. Gonzales (2017) 2 Cal.5th 858, 863; People v. Romanowski (2017) 2 Cal.5th 903, 909.)
The Act added section 459.5, which created the misdemeanor crime of shoplifting for conduct that would have previously qualified as a burglary. (People v. Gonzales, supra, 2 Cal.5th at p. 863.) Section 459.5, subdivision (a) provides: "Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)." The Act did not amend section 459, which states in part: "Every person who enters any house, room, apartment . . . with intent to commit grand or petit larceny or any felony is guilty of burglary."
The Act also added section 1170.18, subdivision (a), which now provides in part: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with . . . Section 459.5, 473, 467a, 490.2, 496, or 666 . . . as those sections have been amended or added by this act."
Defendants may initiate Proposition 47 proceedings by filing a petition for recall. (People v Simms (2018) 23 Cal.App.5th 987, 993.) A two-step procedure of the trial court then follows. (Ibid.) First, the court performs a screening to determine whether the petitioner made a prima facie case for relief. (Ibid.) If so, the proceeding moves to the second step, resentencing, where the felony sentence may be reduced to a misdemeanor. (Ibid.)
In the initial screening stage, the petitioner has the burden to establish eligibility for resentencing under section 1170.18, subdivision (a). (People v. Page (2017) 3 Cal.5th 1175, 1188; People v. Romanowski (2017) 2 Cal.5th 903, 916; People v. Simms, supra, 23 Cal.5th at p. 993.) In some cases, the issue of eligibility for relief may be determined as a matter of law from the allegations of the petition or from the record of conviction. (See Romanowski, at p. 916; Simms, at p. 997; People v. Fedalizo (2016) 246 Cal.App.4th 98, 109.) In Romanowski, the court observed that an evidentiary hearing is not always required at this eligibility phase: "In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. When eligibility is established in this fashion, 'the petitioner's felony sentence shall be recalled and the petitioner sentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' [Citation.] But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction. In these cases, an evidentiary hearing may be 'required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' " (Id. at p. 916.)
Thus, under Romanowski, the court has no obligation to hold an evidentiary hearing on Proposition 47 eligibility where eligibility is evident as a matter of law, but such a hearing may be required if there is a reasonable likelihood the petitioner is entitled to relief and that entitlement depends on resolving an issue of fact. (People v. Romanowski, supra, 2 Cal.5th at p. 916.) To make this determination, courts may consider the verified petitions, the return, denials, declarations under penalty of perjury, and matters of which judicial notice may be taken. (Ibid.; see also People v. Simms, supra, 23 Cal.App.5th at p. 994.)
III. Claim of Sixth Amendment Violation and Per Se Reversal
Relying primarily on People v. Rouse (2016) 245 Cal.App.4th 292, Moore contends the trial court erred by ruling on his Proposition 47 petition in his absence and without appointing defense counsel to represent him. He concedes that Rouse did not decide whether the right to counsel attaches at the earlier eligibility stage of the Proposition 47 scheme. He nevertheless argues he was entitled to assistance of counsel at the eligibility stage in his case because the People were represented, the hearing in his case was "adversarial," and he was entitled to present extrinsic evidence at the hearing. Thus, Moore argues he was deprived of his Sixth Amendment right to counsel at a critical stage of the proceeding, an error that requires per se reversal. A. Legal Principles
A defendant has a fundamental right to be present and represented by counsel at any stage of a criminal proceeding that is critical to its outcome. (Rushen v. Spain (1983) 464 U.S. 114, 117; see People v. Rices (2017) 4 Cal.5th 49, 90; People v. Cunningham (2015) 61 Cal.4th 609, 633; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 465.) A proceeding is a critical stage when it is adversarial in nature and the absence of defendant or his counsel may cause significant prejudice. (People v. Rouse, supra, 245 Cal.App.4th at p. 297.)
In People v. Rouse, supra, 245 Cal.App.4th 292, the Court of Appeal decided as a matter of first impression that a defendant's right to counsel attaches at a Proposition 47 postconviction resentencing hearing. (Id. at pp. 296, 297, 300.) The court's reasoning was based in part on the settled proposition that "[s]entencing is a critical stage in the criminal process within the meaning of the Sixth Amendment." (Rouse, at p. 297, citing People v. Doolin (2009) 45 Cal.4th 390, 453; § 997, subd. (b)(1) [accused in felony cases "shall be personally present . . . at the time of the imposition of sentence," italics added]; see also People v. Thompson (2016) 1 Cal.5th 1043, 1098-1099.) In reaching its decision, Rouse pointed out that several courts had found no Sixth Amendment jury trial rights in connection with a Proposition 47 petition to establish eligibility for resentencing. (Rouse, at p. 299, citing People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 451-452 [holding no right to jury trial on question of property value on resentencing petition]; People v. Ortiz (2016) 243 Cal.App.4th 854, 862 [same; defendant's right to have essential facts found by a jury beyond a reasonable doubt does not apply to limits on downward sentence modifications], review granted Mar. 16, 2016, review dismissed and cause remanded Feb. 28, 2018, S232344.) But the defendant in Rouse had passed the eligibility stage, and the trial court found he was entitled to be resentenced on all counts, including the Proposition 47 counts. (People v. Rouse, 245 Cal.App.4th at p. 297.) Thus, his sentencing hearing "was akin to a plenary sentencing hearing at which his substantial rights were in jeopardy without the assistance of counsel." (Ibid.)
Since Rouse, supra, 245 Cal.App.4th 292, the First District, Division Four Court of Appeal in People v. Simms, supra, 23 Cal.App.5th 987, addressed whether a Proposition 47 eligibility hearing was the sort of proceeding at which a defendant had a Sixth Amendment right to be present. There, the defendant pleaded no contest to grand theft from the person and two counts of second degree burglary. (Id. at pp. 991-992.) He petitioned for relief under Proposition 47, but the uncontested information in his petition was insufficient to determine his eligibility for resentencing, so at the People's request the court conducted two evidentiary hearings, which took place in the defendant's absence. (Id. at pp. 993, 995.) On the defendant's claim he was denied his Sixth Amendment right to be present at those eligibility hearings, the court observed it was " 'well established' " that there was no " 'constitutional or statutory right to be present to address purely legal questions or where [the defendant's] "presence would not contribute to the fairness of the proceeding." ' " (Id. at pp. 996, 998.) But in Simms, the defendant's eligibility for Proposition 47 relief depended on a factual issue, namely the value of property he had stolen; the issues presented were not purely legal, and the defendant did not waive his right to attend. (Id. at p. 997.) The Simms court concluded that where a "factual contest bearing on eligibility for Proposition 47 relief requires that an evidentiary hearing be held, . . . the petitioning defendant has a right to be present, absent a valid waiver." (Id. at p. 998.) Thus, the trial court violated the defendant's constitutional and statutory right to be present. (Id. at p. 997) And Simms held the error was not harmless: "Because the right to be present at a contested section 1170.18, subdivision (a), eligibility proceeding is of federal constitutional dimension, its violation may be deemed harmless only if we can conclude beyond a reasonable doubt that the deprivation did not affect the outcome of the proceeding. [Citation.] . . . [I]n this case the eligibility issue turned on disputed issues of fact about which Simms—as a participant in the events in question—may well have had something to say. The trial court may, or may not, have chosen to believe what Simms might have said, if he said anything, but we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome." (People v. Simms, 23 Cal.App.5th at p. 998.) B. Analysis
Another court, the Second District, Division Seven Court of Appeal in People v. Fedalizo, supra, 246 Cal.App.4th 98, addressed the issue, rejecting the defendant's claim that he was denied his Sixth Amendment rights to self-representation and to be present at an unopposed eligibility hearing at which there were no contested factual issues. (Id. at pp. 109-110.) But the Fedalizo court's discussion was dictum because the defendant's appointed counsel had appeared on his behalf and the record showed the defendant had authorized or acquiesced in the representation, and also had raised the claim for the first time in reply, forfeiting the issue. (Id. at pp. 103, 105, 109.)
As Moore seems to acknowledge, because the trial court in this case did not determine Moore was entitled to resentencing, People v. Rouse is inapposite. Moore's eligibility hearing was not "akin to a plenary sentencing hearing at which [Moore's] substantial rights were in jeopardy without the assistance of counsel." (People v. Rouse, supra, 245 Cal.App.4th at p. 297.) In this procedural context, where Moore's hearing was at the eligibility stage of his case, Rouse gives no guidance.
We agree with Simms that Proposition 47 eligibility hearings are critical stages when contested factual issues are presented by a defendant's petition and the determination requires a factual finding by the trial court. (People v. Simms, supra, 23 Cal.App.5th at p. 997.) In cases where Proposition 47 eligibility may be determined as a matter of law, without any factual contest, however, a defendant has no constitutional or statutory right to be present. (Ibid.)
Here, Moore's petitions fell within the latter category. As a general matter, Moore's petitions failed to establish a basis for relief by way of evidence, citations to the record, or otherwise. (Accord, People v. Perkins (2016) 244 Cal.App.4th 129, 137; but see People v. Washington (2018) 23 Cal.App.5th 948, 956-957 [disagreeing with Perkins and holding a petitioner's mere allegation about the value of stolen property will meet their prima facie burden].) In them, Moore requested the court take judicial notice of several decisions, all of which were either unpublished, uncitable cases, or involved reclassification of second degree commercial burglary sentences. He did not meet his burden to establish prima facie eligibility for resentencing under section 1170.18, subdivision (a). (People v. Romanowski, supra, 2 Cal.5th at p. 909.)
Nor could he on this record. Moore's guilty pleas, which the trial court could properly judicially notice (Evid. Code, § 452, subd. (d) [permitting judicial notice of court records]), shows Moore pleaded guilty and no contest to section 459 first degree residential burglary, not second degree burglary. "A guilty plea is 'a judicial admission of every element of the offense charged' " and is equivalent to a conviction of the offense. (People v. Redd (2014) 228 Cal.App.4th 449, 459, quoting People v. Chadd (1981) 28 Cal.3d 739, 748; see also People v. Hudson (2016) 2 Cal.App.5th 575, 583-584, review granted Oct. 26, 2016, S237340; People v. Borland (1996) 50 Cal.App.4th 124, 127-128.) By these pleas, Moore admitted to all the facts underlying the offenses, that is, that he willfully and unlawfully entered the residences of two victims. (People v. Borland, supra, 50 Cal.App.4th at pp. 127-128.) Moore did not and could not raise a factual question about his eligibility for Proposition 47 relief in view of his guilty and no contest pleas. Because section 459 residential burglary is categorically not eligible for relief under Proposition 47, Moore's petitions would have been properly denied as a matter of law during the initial screening procedure. (People v Simms, supra, 23 Cal.App.5th at p. 997; People v. Romanowski, supra, 2 Cal.5th at p. 909.)
The issue before the trial court was purely legal, namely whether Moore's section 459 convictions qualified for Proposition 47 relief. Accordingly, Moore had no right to be present, nor would his presence have contributed to the fairness of the proceeding. (People v Simms, supra, 23 Cal.App.5th at p. 998.)
Our conclusions require us to reject Moore's contention that the hearing held in his absence requires per se reversal. The eligibility hearing here, presenting no contested factual issue, was not a critical stage of a criminal proceeding. Moore had no right to participate in the hearing, thus no error occurred for any per se reversal rule to apply. (People v Simms, supra, 23 Cal.App.5th at p. 998.) Even if we were to assume the trial court erred in some other way by ruling on Moore's petitions in his absence, we would conclude under Chapman that the error was harmless beyond a reasonable doubt because Moore was categorically not eligible for Proposition 47 relief. (Chapman v. California, supra, 386 U.S. at p. 24; People v Simms, supra, 23 Cal.App.5th at p. 999.)
We acknowledge that the trial court set a hearing on Moore's petitions, even though the petitions could have been denied summarily. We need not entertain the reasons why the trial court did so. It is a settled appellate principle that if a judgment is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning. (People v. Nelson (2012) 209 Cal.App.4th 698, 710; Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956.) The trial court correctly denied Moore's petition despite having set it for a hearing, and we affirm that decision.
DISPOSITION
The orders are affirmed.
O'ROURKE, J. WE CONCUR: HALLER, Acting P. J. IRION, J.