Opinion
C091756
04-23-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA NEIL HARRELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62049800)
Appointed counsel for defendant, Joshua Neil Harrell, asked this court to review the record to determine whether there are any arguable issues on appeal arising from the denial of his pro per motion for postconviction relief. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has filed a supplemental brief, which we discuss in more detail below.
Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the trial court's order.
BACKGROUND
On April 26, 2007, defendant was sentenced to an aggregate prison term of three years for his 2006 conviction for robbery (Pen. Code, § 211) and 2007 convictions for theft from an elder (§ 368, subd. (d)), identify theft (§ 530.5, subd. (a)), and petty theft with priors (§§ 484, subd. (a), 666).
Undesignated statutory references are to the Penal Code.
"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. (Cal. Const., art. II, § 10, subd. (a).)" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified at section 1170.18, which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce felonies to misdemeanors.
On March 12, 2015, the trial court granted defendant relief under Proposition 47 and section 1170.18, subdivision (a), redesignating the petty theft as a misdemeanor. Defendant's request to redesignate his theft from an elder and identity theft convictions was denied. This court upheld the trial order on defendant's petition for relief in an unpublished decision, People v. Harrell (Sept. 2, 2016, C079292) (nonpub. opn.).
The trial court received defendant's in propria persona successive petition for relief on February 3, 2020. This petition argued defendant was entitled to relief under Proposition 47, section 1170.18, Assembly Bill No. 1618, and section 1170, subdivision (d)(1). On February 26, 2020, the trial court denied this petition in a written ruling, stating: "Proposition 47 relief was previously granted as to Count 3, Penal Code 484(a)/666, Petty Theft with a Prior. That relief was granted on 3/12/15. The court denied relief as to Counts 1 and 2, Theft from an Elder (Penal Code 368(d)) and Identity Theft (Penal Code 530.5(a)). The Court of Appeal affirmed the court's ruling on 9/2/16 in case C079292. There is currently a case pending in the California Supreme Court regarding whether Prop. 47 relief is available for Identity Theft cases (People v. Jimenez, #S249397). The court no longer has jurisdiction under Penal Code section 1170(d)(1) because more than 120 [days] has passed since the date of commitment."
Defendant timely appealed.
DISCUSSION
Counsel filed an opening brief that sets forth the relevant procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant has filed a supplemental brief, which we understand to challenge the validity of his plea agreement and by extension the underlying 2007 judgment.
Because defendant has filed a supplemental brief and in an abundance of caution, we shall adhere to Wende in the current case. (See People v. Figueras (2021) 61 Cal.App.5th 108 [dismissing for abandonment a case where defendant's counsel requested Wende review from denial of a § 1170.95 motion and defendant failed to fail a supplemental brief]; People v. Cole (2020) 52 Cal.App.5th 1023, 1028, 1039, review granted Oct. 14, 2020, S264278 [court may dismiss appeal from denial of postjudgment relief if no supplemental brief is filed].) Having examined the record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant.
A review of section 1170.18 does not reveal whether the Legislature contemplated successive motions for relief. The statute does not discuss it. However, section 1170.18, subdivision (j) recognizes a defendant's ability to file a motion for relief until November 4, 2022, and at least one court has recognized a defendant's ability to file an amended petition for relief at the discretion of the court. (People v. Bear (2018) 25 Cal.App.5th 490, 500.) Notwithstanding the possibility that a successive petition may have been permissible, we find any possible error in failing to consider defendant's successive petition harmless as a matter of law. Defendant's two remaining convictions were for offenses that are not subject to relief under Proposition 47. (See People v. Jimenez (2020) 9 Cal.5th 53, 58 [§ 530.5, subd. (a)]; People v. Soto (2018) 23 Cal.App.5th 813, 823 [§ 368, subd. (d)].)
Further, the trial court was correct in ruling that it did not have jurisdiction to consider defendant's petition for relief under section 1170, subdivision (d)(1). The court lost jurisdiction to recall defendant's sentence under that section 120 days after his commitment to prison. (Dix v. Superior Court (1991) 53 Cal.3d 442, 464.)
Defendant's supplemental brief in this court brings challenges to the validity and constitutionality of his underlying judgment. " ' "It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute." ' " (People v. Mena (2012) 54 Cal.4th 146, 152.) Appeal of the order denying relief under Proposition 47 is authorized by subdivision (b) of section 1237, as an order made after judgment, affecting the substantial rights of defendant. (Cf. Teal v. Superior Court (2014) 60 Cal.4th 595, 601.) However, that statutorily conferred appellate jurisdiction is limited to review of the decision to deny relief under Proposition 47. To convert that limited grant of jurisdiction to effectuate appellate review of the commitment judgment would in substance allow a belated motion to vacate that judgment, thereby violating the proscription on " 'bypass[ing] or duplicat[ing] appeal from the judgment itself.' " (People v. Totari (2002) 28 Cal.4th 876, 882.) Defendant already had his chance to challenge the validity and constitutionality of his 2007 plea and conviction. He cannot bring these challenges at this procedural juncture. (See, e.g., People v. Senior (1995) 33 Cal.App.4th 531, 538 ["where a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay"].)
We affirm the trial court's order denying defendant's successive petition to redesignate his offenses.
DISPOSITION
The order is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Murray, Acting P. J. /s/_________
Krause, J.