Opinion
E066546
09-20-2017
THE PEOPLE, Plaintiff and Respondent, v. SHAY JAMES BEATTY, Defendant and Appellant.
Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Meagan J. Beale and Kelley Johnson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. RIF1501751) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Meagan J. Beale and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
On April 28, 2016, defendant and appellant, Shay James Beatty, filed a petition for resentencing pursuant to Penal Code section 1170.18, which the court denied. On appeal, defendant contends the order denying his petition was void as an act in excess of the court's jurisdiction because the court which originally sentenced defendant was not the court which ruled on his petition. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND
The parties stipulated that the investigative reports would provide the factual basis for defendant's plea; however, the investigative reports are not included in the record on appeal.
On June 25, 2015, the People charged defendant with possession of heroin while incarcerated (count 1; § 4573.8) and alleged defendant had suffered a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). On December 3, 2015, defendant pled guilty before Judge Steven Counelis to the count 1 charge and admitted the prior strike conviction allegation. On December 22, 2015, Judge Counelis sentenced defendant to 32 months' incarceration, pursuant to the terms of the plea agreement, consisting of the following: the low term of 16 months on count 1, doubled pursuant to the strike prior.
The court imposed the sentence consecutive to the one which defendant was already serving.
On April 28, 2016, defendant filed a petition for resentencing requesting a reduction of his offense from a felony to a misdemeanor. In the petition, defendant alleged the conviction was for unlawful drug possession pursuant to Health and Safety Code section 11350, 11357, subdivision (a), or 11377, subdivision (a). Defendant also noted he had been convicted of another felony: unlawful drug possession while incarcerated. (Pen. Code, § 4573.8.)
In point of fact, the record reflects that defendant's only conviction for drug possession was for drug possession while incarcerated. Nothing in the record reflects any other drug possession conviction under any Health and Safety Code section, specifically with respect to any conviction for which defendant sought relief under Penal Code section 1170.18.
The People filed a response on June 20, 2016, contending that defendant was not entitled to resentencing pursuant to section 1170.18 because the offense for which defendant stood convicted was not a qualifying felony. On June 20, 2016, Judge Becky Dugan denied defendant's petition by minute order, noting that defendant's conviction for drug possession while incarcerated did not qualify for relief pursuant to section 1170.18.
II. DISCUSSION
Defendant contends the order denying his petition was void as an act in excess of the court's jurisdiction because the court which originally sentenced defendant was not the court which ruled on his petition. We disagree.
"'On November 4, 2014, the voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act" (hereafter Proposition 47), which went into effect the next day. [Citation.]' [Citation.] Section 1170.18 'was enacted as part of Proposition 47.' [Citation.] Section 1170.18 provides a mechanism by which a person currently serving a felony sentence for an offense that is now a misdemeanor, may petition for a recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in subdivision (a) of section 1170.18, shall have his or her sentence recalled and be 'resentenced 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.]" (T. W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2.)
Section 1170.18, subdivision (a) provides: "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 Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." (Italics added.)
"A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f), italics added.) "If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application." (§ 1170.18, subd. (l), italics added.)
"The references in subdivisions (a) and (f) of section 1170.18, as added by section 14 of Proposition 47 to resentencing petitions being presented to 'the trial court that entered the judgment of conviction in his or her case' have the obvious purpose of having the petitions decided by the judge with a presumed knowledge of the underlying circumstances. [Citation.] Clearly, the judge who presided over a petitioner's trial, or who took the guilty plea found to have a factual basis, would be best placed to decide whether 'resentencing the petitioner would pose an unreasonable risk of danger to public safety.' [Citations.]" (People v. Curry (2016) 1 Cal.App.5th 1073, 1080-1081, rev. granted Nov. 9, 2016, S237037, fn. omitted [when jurisdiction of the entire case is transferred to another county, a defendant seeking § 1170.18 relief can no longer seek remedy with the court which sentenced him, but must file the petition in the court to which the matter was transferred]; accord, People v. Adelmann (2016) 2 Cal.App.5th 1188, 1195-1196, rev. granted Nov. 9, 2016, S237602 [same].)
The issue presented, as reflected on the California Supreme Court docket, reads: "If a case is transferred from one county to another for purposes of probation (Pen. Code, § 1203.9), must a Proposition 47 petition to recall sentence be filed in the court that entered the judgment of conviction or in the superior court of the receiving county?" <http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2157718&doc_no=S237602>(as of Sept. 20, 2017).
"In addressing similar language in a statute for resentencing under Proposition 36, [a] [previous] court held that it is 'clear that the initial sentencing judge shall rule on the prisoner's petition. However, as with other rights, a defendant may waive the right for the petition to be considered by a particular judge.' [Citation.]" (People v. Adelmann, supra, 2 Cal.App.5th at p. 1194.) "The petition must be heard by the judge who did the original sentencing, unless the judge is not available. [Citation.] If the original judge is not available, the presiding judge must designate another judge to hear the petition. [Citation.] As with Proposition 36 for three strikes cases, this requirement may be waived by the parties and the matter heard by another judge, such as a judge designated to hear all of these petitions for the court. The waiver must occur prior to any judicial involvement. [Citation.]" (Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2016) § 25:9, p. 25-44.)
The California Supreme Court has "rarely—if ever—found a statutory mandate to be jurisdictional when . . . the mandate itself provides that it may be waived. [Citations.]" (In re Jesusa V. (2004) 32 Cal.4th 588, 624; In re Marriage of E. & Stephen P. (2013) 213 Cal.App.4th 983, 992 [most procedural errors are not jurisdictional and are subject to a harmless error analysis]; accord, In re Marriage of Goodard (2004) 33 Cal.4th 49, 55-57 ["An error is jurisdictional '"only where the clear purpose of the statute is to restrict or limit the power of the court to act . . . ."' [Citation.]"].) "'Where, as here, the statute does not restrict the power of the court . . . we think the violation of the statutory provision constitutes an error of law rather than excess of jurisdiction.' [Citation.]" (County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 549.)
"'"In interpreting a voter initiative . . . we apply the same principles that govern statutory construction. [Citation.] Thus, 'we turn first to the language of the statute, giving the words their ordinary meaning.' [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate's intent]. [Citation.] When the language is ambiguous, 'we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' [Citation.]" [Citation.] In other words, "our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure."' [Citation.]" (T. W. v. Superior Court, supra, 236 Cal.App.4th at pp. 651-652.)
"In construing this, or any, statute, our office is simply to ascertain and declare what the statute contains, not to change its scope by reading into it language it does not contain or by reading out of it language it does. We may not rewrite the statute to conform to an assumed intention that does not appear in its language." (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.) "Where there is no ambiguity in the statutory text, '"then the [enacting body] is presumed to have meant what it said, and the plain meaning of the language governs."' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 55.) A. Jurisdiction
Defendant essentially argues that section 1170.18 confers jurisdiction to rule upon a petition filed pursuant to that statute only upon the judge who originally imposed judgment on the defendant. Therefore, he maintains that by denying his petition, Judge Dugan acted in excess of her jurisdiction, rendering her ruling void as a matter of law. We disagree.
"'When courts use the phrase "lack of jurisdiction," they are usually referring to one of two different concepts, although, as one court has observed, the distinction between them is "hazy." [Citation.]' [Citation.] A lack of jurisdiction in its fundamental or strict sense results in '"an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." [Citation.] On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack "'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." [Citation.] When a court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction.' [Citations.]" (People v. Lara (2010) 48 Cal.4th 216, 224-225; accord, People v. Ford (2015) 61 Cal.4th 282, 286-287.)
"The distinction is important because the remedies are different. '[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a court's jurisdiction in the fundamental sense is null and void' ab initio. [Citation.] 'Therefore, a claim based on a lack of . . . fundamental jurisdiction[] may be raised for the first time on appeal. [Citation.] "In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. [Citations.]" [Citations.]' [Citatons.]" (People v. Lara, supra, 48 Cal.4th at p. 225.)
"Whether the failure to follow a statute makes subsequent action void or merely voidable '"has been characterized as a question of whether the statute should be accorded 'mandatory' or ' directory' effect. If the failure is determined to have an invalidating effect, the statute is said to be mandatory; if the failure is determined not to invalidate subsequent action, the statute is said to be directory." [Citation.]' [Citation]" (People v. Lara, supra, 48 Cal.4th at p. 225.)
"Whether a particular statute is intended to impose a mandatory duty is a question of interpretation for the courts. [Citation.]" (People v. Lara, supra, 48 Cal.4th at p. 225 [statute providing that an action to extend the commitment of an individual to a state hospital or other treatment facility "shall" be filed within a specified time period was directory, not mandatory, for jurisdictional purposes]; People v. Ford, supra, 61 Cal.4th at p. 287 [expiration of probationary period does not terminate court's fundamental jurisdiction over a defendant]; People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 662-663 [court did not lack fundamental jurisdiction to enter summary judgment on a bail bond forfeiture on the 185th day instead of the 186th day as provided by statute].) Although the trial court typically lacks jurisdiction to resentence a defendant once the judgment becomes final, a petition under section 1170.18 vests the trial court with jurisdiction to resentence a defendant. (People v. Cortez (2016) 3 Cal.App.5th 308, 311-312.)
"'The state Constitution [citation] provides for but one superior court in each county . . . . Accordingly, it has been held that jurisdiction is vested by the Constitution in the court and not in any particular judge or department thereof; and that whether sitting separately or together, the judges hold but one and the same court. [Citation.]'" (People v. Konow (2004) 32 Cal.4th 995, 1018.) However, while one department or judge of a superior court is exercising this discretion, any other department or judge which attempts to rule on the same or a related matter acts in excess of its jurisdiction. (Id. at pp. 1018-1019.)
Here, we hold that section 1170.18 vests fundamental jurisdiction to hear a petition filed pursuant to that statute in the trial court in its entirety, not just in the judge who imposed sentence upon the defendant. This is clear because the statute initially, twice uses the term "trial court," rather than "sentencing judge," when indicating which entity has authority to consider a petition filed pursuant to section 1170.18. (§ 1170.18, subds. (a), (f).) Indeed, the statute's later use of the terms "court that originally sentenced the petitioner" and "another judge" reflect that the authors knew how to expressly indicate whether only a specific judge had jurisdiction to hear such a petition. (See People v. Thomas (1999) 21 Cal.4th 1122, 1126 ["[S]ection 2933.1 demonstrates that 'when the Legislature wanted to restrict presentence conduct credit, it knew how to do so.'"].)
Likewise, as noted above, the state Constitution vests jurisdiction in the trial court in its entirety, not in any specific judge. (People v. Konow, supra, 32 Cal.4th at p. 1018.) Moreover, at least two courts have, in effect, held that the judge who imposed sentence upon a defendant is not the only court officer who may exercise jurisdiction over a petition filed pursuant to section 1170.18. Indeed, those courts held that, in certain situations not applicable here, a different superior court, not just another judge, may exercise jurisdiction over a section 1170.18 petition. (People v. Curry, supra, 1 Cal.App.5th at pp. 1080-1081; People v. Adelmann, supra, 2 Cal.App.5th at pp. 1195-1196.) Furthermore, the statute permits a judge other than the one which sentenced a defendant to rule on a section 1170.18 petition when the presiding judge determines that the sentencing judge is not available. (§ 1170.18, subd. (l).) Finally, any requirement that the defendant be resentenced by the judge who sentenced him may be waived by the defendant. (People v. Adelmann, supra, at p. 1194; Couzens et al., Sentencing Cal. Crimes, supra, § 25:9, p. 25-44.) Thus, section 1170.18 vests fundamental jurisdiction in the superior court in its entirety over a section 1170.18 petition and Judge Dugan's ruling was not per se void.
Though by virtue of the California Supreme Court's granting of review of those cases, their holdings do not bear the normal weight accorded under the doctrine of stare decisis. Nevertheless, we find their holdings persuasive.
Defendant cites People v. Barros (2012) 209 Cal.App.4th 1581 for the proposition that Judge Dugan's ruling on defendant's petition was in excess of her jurisdiction. Barros is distinguishable. The Barros court held that the sentencing judge was bound by the previous decision by another judge in the same case: that the two cases the People had charged against defendant had been properly joined, rendering the defendant ineligible for the alternative sentencing scheme for nonviolent drug offenders to which the second court referred the defendant. (Id. at pp. 1584, 1589, 1597.) The court did not even discuss jurisdictional issues.
Here, unlike in Barros, defendant's case had been final upon the expiration of the time for filing a notice of appeal from the date of sentencing. That finality removed the court's jurisdiction over his case. Only upon the filing of defendant's section 1170.18 petition did the court regain jurisdiction over the matter. From that point forward, unlike in Barros, the only judge to exercise jurisdiction over defendant's case was Judge Dugan. Thus, unlike Barros, Judge Dugan did not revisit or override a ruling by another judge in the same case. Therefore, her denial of the petition was not void as a matter of law. B. Procedural Error
We hold that any error in ruling on defendant's petition was procedural error, rather than jurisdictional error. Therefore, Judge Dugan did not act in excess of her jurisdiction in ruling on defendant's petition; ergo, her ruling was not voidable.
The California Supreme Court has "rarely—if ever—found a statutory mandate to be jurisdictional when . . . the mandate itself provides that it may be waived. [Citations.]" (In re Jesusa V., supra, 32 Cal.4th at p. 624; In re Marriage of E. & Stephen P., supra, 213 Cal.App.4th at p. 992 [most procedural errors are not jurisdictional and are subject to a harmless error analysis]; accord, In re Marriage of Goodard, supra, 33 Cal.4th at pp. 55-57 ["An error is jurisdictional '"only where the clear purpose of the statute is to restrict or limit the power of the court to act . . . ."' [Citation.]"].) "'Where, as here, the statute does not restrict the power of the court . . . we think the violation of the statutory provision constitutes an error of law rather than excess of jurisdiction.' [Citation.]" (County of Santa Clara v. Superior Court, supra, 4 Cal.3d at p. 549.)
Here, we discern no statutory restriction on the power of any judge of the superior court in which a defendant was sentenced to rule on a section 1170.18 petition where that ruling requires only a legal analysis without any factual determination. In People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, relied upon by this court in People v. Adelmann, supra, 2 Cal.App.5th at page 1194, the court held that language in section 1170.126, subdivision (b), the statutory enactment of Proposition 36, reading that the petition for resentencing must be filed "'before the trial court that entered the judgment of conviction in his or her case,'" was "clearly a reference to" "the initial sentencing judge." (People v. Superior Court (Kaulick), supra, at pp. 1300-1301.) However, similar to Barros, Kaulick never reasoned that this language could be used to either confer or restrain the exercise of a particular judge's jurisdiction over the matter.
Indeed, as Curry divined, the intent of the statutory language suggesting that the sentencing judge rule on a defendant's section 1170.18 petition was that that judge "would be best placed to decide whether 'resentencing the petitioner would pose an unreasonable risk of danger to public safety.' [Citations.]" (People v. Curry, supra, 1 Cal.App.5th at pp. 1080-1081.) Here, no dangerousness analysis was required. Indeed, no factual determination needed to be made because, as we shall discuss below, defendant failed to make even a prima facie showing of eligibility for resentencing. Therefore, if Judge Dugan erred in ruling on defendant's petition, any error was procedural, not jurisdictional. Thus, any error would be subject to a harmless error analysis. C. Harmless Error
There is insufficient evidence before this court as to whether Judge Counelis was available to rule on defendant's petition. Defendant requests we take judicial notice of the roster of judges as of November 30, 2016, which reflects that Judge Counelis was still listed as "active" and "assigned." However, as the People observe, the roster does not show that Judge Counelis was available on the day defendant's petition was denied. We, therefore, deny the request for judicial notice. However, we note that when a judge, who was not the sentencing judge, rules on a petition pursuant to section 1170.18 without holding a hearing, the better practice would be to establish a record, pursuant to section 1170.18, subdivision (l), that the sentencing judge was unavailable at the time. Indeed, perhaps the best practice would be to amend the section 1170.18 petition form to include a waiver of any right to have the petition decided by the sentencing judge if the defendant wants expedited review.
Even assuming arguendo that Judge Dugan acted in excess of her jurisdiction or committed procedural error by ruling on defendant's petition, we hold any error was harmless.
"Errors which are merely in excess of jurisdiction should be challenged directly, . . . on appeal . . . . [Citation.]" (People v. Amercian Contractors Indemnity Co., supra, 33 Cal.4th at p. 661.) When a court acts in excess of its jurisdiction, the matter "is subject to harmless error analysis under the Watson standard." (People v. Williams (2006) 40 Cal.4th 287, 301; see People v. Leonard (2007) 40 Cal.4th 1370, 1389-1390 [disagreeing with the holding in People v. Castro (2000) 78 Cal.App.4th 1402 "that a trial court's erroneous failure to appoint the director of the regional center to examine a developmentally disabled defendant whose competence is in question is a jurisdictional error that necessarily requires reversal of any ensuing conviction."]; In re Cristian I. (2014) 224 Cal.App.4th 1088, 1103 ["[A]ny procedural errors in assuming temporary jurisdiction were not prejudicial because it was unlikely there would have been a different outcome if all the statutory procedures had been properly followed. [Citation.]"]; People v. Gastile (1988) 205 Cal.App.3d 1376, 1384 ["This error was one of procedure and of procedural due process, but not one in excess of jurisdiction. And the error was harmless."]; contra, In re Birdwell (1996) 50 Cal.App.4th 926, 930 [imposition of unauthorized sentence is an act in excess of the court's jurisdiction and not subject to harmless error analysis].)
People v. Watson (1956) 46 Cal.2d 818. The Watson standard of harmless error analysis requires "[t]hat a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Id. at p. 836.) --------
Here, defendant pled guilty to possession of a controlled substance while incarcerated under section 4573.8. Possession of a controlled substance while incarcerated is not an offense listed as rendering a defendant eligible for resentencing pursuant to section 1170.18. Thus, defendant is simply not statutorily eligible for resentencing pursuant to section 1170.18. (People v. Bush (2016) 245 Cal.App.4th 992, 1001 [only those statutory offenses expressly listed in § 1170.18 are eligible for resentencing].)
There is simply no provision in section 1170.18 for resentencing a defendant convicted of possession of a controlled substance while incarcerated. The drafters of Proposition 47 clearly knew how to compose language to include crimes committed under section 4573.8 if they so desired. (See People v. Albillar, supra, 51 Cal.4th at p. 56.) The fact that an offense committed under section 4573.8 is not listed as eligible for resentencing indicates the drafters intended to exclude it from such eligibility. Indeed, "[t]he legislative inclusion of [specific] crimes as exceptions necessarily excludes any other exceptions [citation]." (People v. Gray (1979) 91 Cal.App.3d 545, 551.)
Here, section 1170.18 expressly limits, by explicit enumeration of the particular statutes, those offenses which render defendants eligible for resentencing. The absence of section 4573.8 reveals an intent to render defendants convicted of possession of a controlled substance while incarcerated ineligible for such resentencing. Therefore, any error Judge Dugan committed in ruling on the petition was harmless because it was not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. The court correctly determined defendant was ineligible for resentencing because he was convicted of an offense not enumerated as statutorily eligible for resentencing.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.