Opinion
F085767
12-15-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY RAY HELTON, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, and Craig S. Meyers, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County. No. VCF283774 Antonio A. Reyes, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, and Craig S. Meyers, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2013, defendant Johnny Ray Helton was convicted of arson (Pen. Code, § 451, subd. (c)), and a prior serious felony and two prior prison enhancement allegations (§§ 667, subd. (a)(1), 667.5, former subd. (b)) were found true. (Undesignated statutory references are to the Penal Code.) He was sentenced to an aggregate term of 19 years: the upper term of six years doubled based upon a strike prior for a 12-year term for arson, plus five years for the prior serious felony enhancement, and two years for the prior prison enhancements. (The abstract of judgment erroneously listed the five-year enhancement as imposed pursuant to § 667.5, subd. (a)(1).)
On December 15, 2022, defendant filed a petition for resentencing under former section 1171.1, now section 1172.75, asking the court to dismiss all of his prior conviction enhancements. On December 19, 2022, the court struck the two prior prison term enhancements, reducing defendant's sentence to 17 years. Defendant appeals from that order.
On appeal, counsel filed a brief asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Based upon our independent review of the record, we requested supplemental briefing from the parties pursuant to Government Code section 68081, in part, regarding whether the trial court had jurisdiction to enter its December 19, 2022, order striking defendant's prison prior enhancements and, relatedly, on whether the resulting order was appealable.
The parties now agree the trial court lacked jurisdiction to strike defendant's prison priors under section 1172.75 (former § 1171.1).
We conclude the court's December 19, 2022, order is void and vacate it.
FACTUAL AND PROCEDURAL HISTORY
In 2013, a jury convicted defendant of arson (§ 451, subd. (c)) and vandalism (§ 594, subd. (a)). The court found true allegations defendant suffered multiple prior strike convictions (§ 1170.12, subds. (a)-(i)), a prior serious felony conviction (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, former subd. (b)). The court sentenced defendant to an aggregate term of 19 years: the upper term of six years, doubled to 12 years pursuant to section 1170.12, subdivision (c)(1) for the arson conviction, plus five years for the section 667, subdivision (a)(1) prior serious felony enhancement, and two years for the prior prison enhancements. The minute order and abstract of judgment erroneously listed the five-year enhancement as imposed pursuant to section 667.5, subdivision (a)(1).
As to the vandalism count (count 2), the court sentenced defendant to 244 days, "deemed time served." The court also struck five of the six section 1170.12, subdivision (a) strike allegations.
On April 7, 2017, a letter from the California Department of Corrections and Rehabilitation (CDCR) was filed with the trial court asking for clarification regarding whether the five-year prior conviction enhancement should have instead been for a three-year term because it was listed on the abstract of judgment as an enhancement pursuant to section 667.5, subdivision (a)(1).
On December 15, 2022, defendant filed pro se a petition for resentencing pursuant to Penal Code former section 1171.1 (now § 1172.75). In the petition, defendant asserted his sentence included a "five-year enhancement pursuant to section 11370.2 of the Health and Safety Code" and/or "a one-year sentencing enhancement pursuant to section 667.5 of the Penal Code that was not imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of section 6600 of the Welfare and Institutions Code." He argued, "[a]s of January 1, 2022 my prior convictions are 'legally invalid' and therefore 'the court shall recall the sentence and resentence me.[']" Defendant asked the court to appoint him counsel, citing former section 1171.1, subdivision (d)(5), and requested a status hearing. He also contended the court "'shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing,'" citing former section 1171.1, subdivision (d) in support.
On December 19, 2022, the trial court issued an order striking both of defendant's one-year section 667.5, former subdivision (b) prison prior enhancements, resentencing defendant to a term of 17 years' imprisonment. There is no evidence in the record that defendant was present during resentencing or represented by counsel, or that he waived his rights to be present or to have counsel. Following the resentencing, the resulting abstract of judgment included the same clerical error as the original-it cited section 667.5, subdivision (a)(1) instead of section 667, subdivision (a)(1) as the basis for defendant's five-year enhancement.
Defendant sent the court a letter the same day asserting the court erred in failing to strike the section 667.5, subdivision (a) enhancement and reiterating his request that counsel be appointed for him. On February 15, 2023, defendant filed a notice of appeal from the December 19, 2022, order, challenging the five-year enhancement imposed pursuant to section 667.5, subdivision (a).
On February 22, 2023, the trial court received another letter from the CDCR regarding whether the prior felony conviction should have been a three-year term (pursuant to § 667.5, subd. (a)(1)) as opposed to a five-year term (pursuant to § 667, subd. (a)(1)). That same day, the trial court confirmed the enhancement was a five-year term pursuant to section 667, subdivision (a)(1) and it filed an amended abstract of judgment that listed defendant's sentence as the aggravated term of 12 years for arson (upper-term of six years, doubled pursuant to § 1170.12, subd. (c)(1)), plus an additional and consecutive term of five years pursuant to section 667, subdivision (a)(1), for a total of 17 years in state prison.
On February 27, 2023, defendant filed a second notice of appeal from the December 19, 2022, order, indicating it was related to "1171.1-PC 667.5(a) (nonviolent offender)."
We appointed counsel, who filed an opening brief pursuant to Wende requesting independent review of the record for arguable issues. Appellate counsel notified defendant he was filing a Wende brief and informed defendant he had 30 days from the filing of the brief to submit any issues he wished our court to review. Our court also sent defendant a letter notifying him he could submit a letter stating any grounds on appeal he wanted our court to hear. Defendant filed a letter with our court asserting, in part, he was not aware of his appellate counsel's actions concerning his case and the trial judge "came out of retirement" just to do his case but he "did not recertify first."
Based upon our independent review of the record, we ordered the record on appeal be augmented to include any document filed or lodged demonstrating the Secretary of the CDCR identified defendant as a person serving a term for a judgment that includes an enhancement described in subdivision (a) of section 1172.75 or a settled statement explaining whether the Secretary of the CDCR identified defendant as a person serving a term for a judgment that includes an enhancement described in subdivision (a) of section 1172.75, the date the court received notice of such identification, and the form of such identification.
In response, the trial court held a hearing on November 15, 2023, during which it noticed procedural errors that occurred during the initial resentencing. The court noted defendant filed pro se a former section 1171.1 petition on December 15, 2022, and the court resentenced him to 17 years' imprisonment after striking the two section 667.5, former subdivision (b) enhancements. The court noted it believed "an issue arises there because, one, there was no letter from the [CDCR]"; rather, defendant filed a petition himself. The court stated the issue then was whether defendant should be entitled to resentencing, "[a]nd I think the answer would be yes." Defense counsel agreed. The court then stated, "what should have been done, and which I intend to do now, is to appoint [counsel] to represent [defendant] on the resentencing issues that should have been considered pursuant to his petition under [former section] 1170.1 [sic]." The prosecutor indicated he was "not in disagreement with the Court's tentative." The court then appointed defendant counsel and set the matter for resentencing on December 14, 2023.
Thereafter, based upon our independent review of the record, we ordered the parties to provide supplemental briefing pursuant to Government Code section 68081, addressing whether the trial court had jurisdiction to resentence defendant under Penal Code section 1172.75, subdivision (d) and, relatedly, whether the trial court's December 15, 2022, order on defendant's petition for resentencing was an appealable order. We also asked the parties to brief whether defendant validly waived his right to counsel and/or to be present during resentencing and, if not, whether his right to counsel and/or his right to be present were violated when the court resentenced him under Penal Code section 1172.75; whether resentencing was conducted in compliance with Penal Code section 1172.75, subdivision (d); and, if there was error in the proceedings, what was the proper remedy.
DISCUSSION
We have received supplemental briefing from the parties and conclude the trial court lacked jurisdiction to enter its December 19, 2022, order and, accordingly, vacate it.
A. Resentencing Proceedings Pursuant to Section 1172.75
An appeal may be taken by a defendant from a final judgment of conviction or from any order made after judgment, affecting a defendant's substantial rights. (§ 1237.) However, once execution of a sentence has commenced, except for limited statutory exceptions (e.g., § 1172.1, subd. (a)), the sentencing court is without jurisdiction to vacate or modify the sentence. (See People v. Karaman (1992) 4 Cal.4th 335, 344 ["Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced"].)
Senate Bill No. 483 (2021-2022 Reg. Sess.) added former section 1171.1, now renumbered section 1172.75, which provides that "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense ... is legally invalid." (§ 1172.75, subd. (a).) Senate Bill No. 483 also provides a process for recall of sentences rendered invalid by Senate Bill No. 483 and resentencing of affected defendants. (§ 1172.75, subds. (b)-(d).)
The resentencing process begins with corrections officials: "The Secretary of the [CDCR] and the county correctional administrator of each county shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and shall provide the name of each person, along with the person's date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement." (§ 1172.75, subd. (b).) The CDCR was to provide this information to the trial courts on a staggered timeline, with the last of such identifications occurring by July 1, 2022. (§ 1172.75, subd. (b)(2).)
Receipt of information from corrections officials regarding a defendant's resentencing eligibility triggers review by the trial court: "Upon receiving the information described in subdivision (b), the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant." (§ 1172.75, subd. (c); accord, People v. Cota (2023) 97 Cal.App.5th 318, 330.) The review and resentencing process also is conducted on a staggered timeline, and all eligible individuals are to be resentenced by December 31, 2023. (§ 1172.75, subd. (c)(1)-(2).)
Thus, once the CDCR provides an identification to the trial court pursuant to section 1172.75, subdivision (b), the statute provides an authorized exception to the general rule that a trial court has no jurisdiction to modify a final judgment. (§ 1172.75, subd. (c); Cota, supra, 97 Cal.App.5th at p. 332.) However, "section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition." (Cota, at p. 332; see generally People v. Burgess (2022) 86 Cal.App.5th 375, 381-382 [trial court lacked jurisdiction to rule on defendant's motion for resentencing under § 1172.75 and appellate court lacked jurisdiction over appeal from motion's denial].)
B. Analysis
Here, it is undisputed defendant was not identified by the Secretary of CDCR and/or the county correctional administrator in accordance with section 1172.75, subdivision (b) before the trial court issued its December 19, 2022, order striking defendant's section 667.5, former subdivision (b) enhancements. Accordingly, in their supplemental briefing, the parties now agree the trial court lacked jurisdiction to resentence defendant pursuant to section 1172.75. Defendant asserts the court's order must be vacated; the People assert the appeal must be dismissed.
We agree the trial court lacked jurisdiction to enter its December 19, 2022, order and conclude the court's order must be vacated. Said differently, here, it appears the trial court did not have authority to resentence defendant; so, its December 19, 2022, order striking defendant's section 667.5, former subdivision (b) enhancements is void. (See People v. Ford (2015) 61 Cal.4th 282, 286 ["A court lacks jurisdiction in a fundamental sense when it has no authority at all over the subject matter or the parties, or when it lacks any power to hear or determine the case. [Citation] If a court lacks such '"fundamental"' jurisdiction, its ruling is void"]; People v. Chavez (2018) 4 Cal.5th 771, 780 ["When a court lacks fundamental jurisdiction, its ruling is void"].)
Nothing in this opinion should be construed as prohibiting defendant from obtaining relief under section 1172.75 if he is properly identified by the CDCR as required by section 1172.75, subdivision (b) or, alternatively, from seeking relief by writ of habeas corpus if the CDCR failed to take action within the statutorily mandated timeline.
"This does not mean that this court lacks jurisdiction over the instant appeal. An appeal from a void judgment is not the same as an appeal from a nonappealable order, in which case the appeal must be dismissed." (People v. Alanis (2008) 158 Cal.App.4th 1467, 1476.) Rather, where, as here, the judgment meets the statutory test of appealability-i.e., it is an "order made after judgment, affecting the substantial rights of the party" (§ 1237, subd. (b))-an appeal from it lies even though the judgment is void. (See Alanis, supra, at p. 1477.) Under such circumstances, the proper procedure is to reverse or vacate the void judgment rather than dismiss the appeal. (See ibid.; accord, People v. Nelms (2008) 165 Cal.App.4th 1465, 1474 [vacating court's postconviction order for lack of subject matter jurisdiction]; People v. Espinosa (2014) 229 Cal.App.4th 1487, 1500 [same].)
DISPOSITION
The court's December 19, 2022, order is vacated and the original sentence of 19 years' imprisonment is reinstated. The clerk of the superior court is directed to prepare an amended abstract of judgment that correctly lists the sentence and enhancements and to forward a copy to the CDCR.
[*] Before Peña, Acting P. J., Smith, J. and De Santos, J.