Opinion
E066430
01-19-2018
THE PEOPLE, Plaintiff and Respondent, v. CHAD ISAAC HUBER, Defendant and Appellant.
Kevin Smith, 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, Eric A. Swenson and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV803032) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Kevin Smith, 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, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A year and a half after the filing deadline for Proposition 36 petitions had passed, defendant and appellant Chad Isaac Huber filed a petition for resentencing under Penal Code section 1170.126, known as the Three Strikes Reform Act of 2012 (Proposition 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)). The trial court denied defendant's petition as untimely. On appeal, defendant argues the trial court erred in denying his petition as untimely because he had shown good cause for the delay in filing his resentencing petition under Proposition 36. We agree with the trial court that in this case there was no good cause to justify the untimely filing of the petition, and therefore affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
PROCEDURAL BACKGROUND
In 2009, a jury found defendant guilty of unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a), count 1), receiving a stolen vehicle (§ 496d, subd. (a), count 2), and felony evading an officer (Veh. Code, § 2800.2, subd. (a), count 3). In a bifurcated proceeding, the jury also found true that defendant had sustained two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). After the trial court denied defendant's motion to strike his prior strike convictions, defendant was sentenced to a total indeterminate term of 25 years to life in state prison.
"On November 6, 2012, the California electorate approved Proposition 36, otherwise known as the Three Strikes Reform Act of 2012 [the Act] . . . which became effective the next day . . . [and which] enacted section 1170.126, establishing a procedure for an offender serving an indeterminate life sentence for a third strike conviction that is not defined as a serious and/or violent felony to file a petition for recall of sentence." (Teal v. Superior Court (2014) 60 Cal.4th 595, 596-597.) Proposition 36 reduced the punishment to be imposed with respect to some third strike offenses that are neither serious nor violent, and provided for discretionary resentencing in some cases in which third strike sentences were imposed with respect to felonies that are neither serious nor violent. Proposition 36 provided for a two-year period, expiring on November 7, 2014, within which petitions for resentencing may be filed. (§ 1170.126, subd. (b).)
On May 2, 2016, defendant filed an in propria persona petition for recall of his sentence under section 1170.126 as to all three counts. Defendant argued that his convictions for unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a), count 1), receiving a stolen vehicle (§ 496d, subd. (a), count 2), and felony evading an officer (Veh. Code, § 2800.2, subd. (a), count 3) were neither serious nor violent felonies, and thus, he should be resentenced pursuant to Proposition 36. He also asserted that the holding in People v. Johnson (2015) 61 Cal.4th 674 (Johnson) substantially changed the law regarding resentencing petitions under section 1170.126 and therefore, his reliance on Johnson in filing his petition late constituted good cause. Defendant further argued that he did not suffer a disqualifying prior strike conviction and that he did not pose an unreasonable risk of public safety because he was also serving a 209-year-to-life term on a criminal conviction out of Riverside County.
In 2010, a jury found defendant guilty as charged of three counts of second degree murder (§ 187, subd. (a); counts 1-3) and one count of hit and run causing death (Veh. Code, § 20001, subds. (a), (b)(2); count 4). The jury also found true that defendant had suffered three prior convictions which the trial court found constituted two prior serious felony convictions (§ 667, subd. (a)), two prior strike convictions (§ 667, subds. (c), (e)(2)(a)), and one prison prior (§ 667.5, subd. (b)). After modification of the judgment by this court on appeal, defendant received a 209-year-to-life sentence in that case. (See People v. Huber (Feb. 21, 2012, E052734) [nonpub. op.].)
Following a hearing on July 8, 2016, the trial court denied defendant's petition as untimely since it was not filed within the two-year statutory period. This appeal followed.
III
DISCUSSION
Defendant argues the trial court erred in denying his Proposition 36 motion as untimely because he had good cause for filing his petition late. Specifically, he asserts he had good cause for filing his petition after the two-year deadline because the law was unsettled as to whether he was eligible to petition for resentencing on his convictions in this case, even though he had the later convictions in the Riverside case that remained subject to the three strikes sentencing, until the California Supreme Court decided Johnson, supra, 61 Cal.4th 674.
In Johnson, supra, 61 Cal.4th 674, our Supreme Court held that an inmate is eligible for resentencing under section 1170.126 on a current conviction that is neither serious nor violent, even though he or she has another current conviction that is serious or violent. (Johnson, at p. 679.) The Johnson court concluded that the Act "requires an inmate's eligibility for resentencing to be evaluated on a count-by-count basis. So interpreted, an inmate may obtain resentencing with respect to a Three Strikes sentence imposed for a felony that is neither serious nor violent, despite the fact that the inmate remains subject to a third strike sentence of 25 years to life." (Id. at p. 688; see People v. Lynn (2015) 242 Cal.App.4th 594, 598.)
A. Proposition 36 Generally
As previously noted, in November 2012, the electorate passed Proposition 36, which changes the requirements for sentencing a third strike offender. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood ).) Under the former version of the Three Strikes law, an individual with two or more prior strikes who is convicted of any new felony may be sentenced to an indeterminate life sentence. (Yearwood, at p. 167.) Under the new version, a life sentence for a third strike offender is reserved for cases in which the new felony is also serious or violent, or the prosecution has pled and proved an enumerated disqualifying factor. (Id. at pp. 167-168.) In all other cases, a third strike offender is to be sentenced as a second strike offender. (Id. at p. 168.) Relevant to defendant's appeal, Proposition 36 also created a procedure permitting the resentencing of "persons presently serving an indeterminate term of imprisonment [under the Three Strikes law], whose sentence under this act would not have been an indeterminate life sentence" under certain enumerated circumstances. (§ 1170.126, subd. (a).) "To obtain a sentencing reduction pursuant to section 1170.126, the prisoner must file a petition for a recall of sentence in the trial court. 'Any person serving an indeterminate term of life imprisonment imposed pursuant to' the three strikes law may file a petition for a recall of his or her sentence within two years after the Act's effective date 'or at a later date upon a showing of good cause.' (§ 1170.126, subd. (b) . . . .)" (Yearwood, at p. 170, italics added; see People v. Conley (2016) 63 Cal.4th 646, 652-653.)
" 'An inmate is eligible for resentencing if . . . [¶] . . . [t]he inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or violent . . . .' (§ 1170.126, subd. (e)(1).) Like a defendant who is being sentenced under the new provisions, an inmate is disqualified from resentencing if any of the exceptions set forth in section 667, subdivision (e)(2)(C) and section 1170.12, subdivision (c)(2)(C) are present. (§ 1170.126, subd. (e).) In contrast to the rules that apply to sentencing, however, the rules governing resentencing provide that an inmate will be denied recall of his or her sentence if 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subd. (f).)" (Johnson, supra, 61 Cal.4th at p. 682.)
B. Standards Governing Delays in Filing
Defendant and the People agree that section 1170.126 does not define "good cause." Section 1382 contains various time limitations that ensure that a defendant receives a speedy trial.
Defendant suggests, and the People agree, that the judicially crafted elements of good cause under section 1382 should apply to good cause as set forth in section 1170.126, subdivision (b): "Section 1382 does not define 'good cause' as that term is used in the provision, but numerous California appellate decisions that have reviewed good-cause determinations under this statute demonstrate that, in general, a number of factors are relevant to a determination of good cause: (1) the nature and strength of the justification for the delay, (2) the duration of the delay, and (3) the prejudice to either the defendant or the prosecution that is likely to result from the delay." (People v. Sutton (2010) 48 Cal.4th 533, 546 (Sutton).)
Bringing a person to trial is, of course, an entirely different matter from filing a petition under section 1170.126. However, the analogy is not based on the similarity in the functions that are involved in sections 1382 and 1170.126, but rather on whether delays should be evaluated along similar lines under these provisions. It seems that delay and good cause have identical relationships in sections 1170.126 and 1382. Delay is a negative under both provisions and good cause functions under both provisions as a rationale or excuse for the delay.
Prejudice, on the other hand, is far less likely to be a significant factor under section 1170.126 than under section 1382. Under the latter provision, prejudice is a very important and highly pertinent consideration. However, under section 1170.126, it is difficult to see how the prosecution would ever be significantly prejudiced by a delay in the filing of a petition under section 1170.126. In any event, the factors set forth in Sutton, supra, 48 Cal.4th at p. 546, are helpful analytical tools in the determination of good faith under section 1170.126.
C. Standards of Appellate Review
Defendant argues the issue of whether he was eligible to file a petition before the Johnson holding is a question of law and, therefore the de novo standard of review applies. The People state that the standard of appellate review should be whether the trial court abused its discretion in making the good faith determination.
It has been noted that good cause determinations generally are subject to the abuse of discretion standard of review. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 8:104.21, p. 8-73.) Good cause determinations under section 1382 are reviewed under the abuse of discretion standard. (Sutton, supra, 48 Cal.4th at pp. 546-547.)
We will not decide as a general proposition which standard should govern because in this case there is no dispute about the facts.
The issue before us is whether, as a matter of law, when the law is unsettled as to whether a defendant is eligible to petition for resentencing or waiting for a Supreme Court decision is good cause for the late filing of a petition under section 1170.126. When the issue on appeal is one of law, usually the independent or de novo standard of review applies. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:106, p. 8-76, citing, inter alia, Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191; see People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)
D. Good Cause
Defendant argues that the law was unsettled as to whether he was eligible to petition for resentencing on his 2009 convictions in this case prior to the holding in Johnson, which was filed on July 2, 2015, and "made clear for the first time that each conviction is separately eligible for Proposition 36 resentencing even if other convictions are not eligible[.]" Thus, according to defendant, he had good cause for filing his late petition since it was based on the holding in Johnson and since, prior to Johnson, his 2010 conviction for second degree murder would have disqualified him from petitioning for resentencing on his eligible 2009 offenses.
Here, the usual grounds for rescuing a litigant who has filed late—mistake, inadvertence, surprise, or excusable neglect—are not even remotely invoked. This means the analysis must center on the reason or reasons for deliberately delaying the filing. If the "good" in good cause means anything in the context of this case, it means that the reason given should be at least arguably a sound reason. Certainly, a frivolous reason could not qualify as good cause. The soundness of the reasons given can be evaluated in terms of what we know about the operations of the legal system. If, on balance, the reason given is sound, the reason ought to amount to good cause. However, the less sound the reason, the more likely that there should not be a finding of good cause. With the foregoing in mind, we analyze the soundness of the reasons defendant gives for the deliberate late filing of his petition under section 1170.126.
Defendant gives two reasons, one in his petition and the other in his appellate brief, why he decided not to file within the two-year deadline. As he did in his petition, defendant reasons that his justification was sound because the law was unsettled as to whether he was eligible to petition for resentencing in this case, given his 2010 murder convictions in the Riverside case, to wait until the Supreme Court clarified he could proceed with the petition in Johnson. His second reason for filing the late petition is that he should be afforded leeway under the "constructive filing" doctrine articulated in In re Benoit (1973) 10 Cal.3d 72 (Benoit) because he acted with "good faith" in seeking to file a timely petition but was "discouraged" from doing so by his defense counsel. Defendant cites to a brief discussion during the hearing on his petition for resentencing in which his defense counsel stated that defendant had contacted the public defender's office during the two-year statutory period to file the petition and that the office elected not to file the petition.
Defendant's first reason is predicated on the assumption that following the decision in Braziel v. Superior Court (2014) 225 Cal.App.4th 933 (Braziel), superseded by grant of review, the law was against him. However, it is not true that the law was uniformly against him. Between May 30, 2014 and July 30, 2014, In re Machado (2014) 226 Cal.App.4th 1044, 1057 (Machado), superseded by Johnson, supra, 61 Cal.4th 674, held in defendant's favor. Machado held that a person who had been convicted of both an ineligible offense and an eligible offense was still entitled to petition for resentencing on the eligible conviction under Proposition 36. (Id. at p. 1057.) Thus, had defendant filed his petition for resentencing between May 30, 2014 and July 30, 2014, his petition would have been timely and he could have relied on the favorable holding in Machado to support it. Defendant does not cite Machado in his appellate opening brief. In his reply brief, defendant claims it would have been an "oppressive burden to impose on an inmate without counsel to ascertain a precise two-month window in which he could have cited a case favorable to his position." We disagree. Inmates often file petitions without the assistance of counsel whether or not the law is unsettled. In fact, if the law is unsettled, it would not have been futile to file a petition.
The court in Braziel concluded that in determining eligibility for recall of sentence, the court must look at all of the felonies for which an inmate is serving the current term, and if any of those felonies is serious and/or violent, the inmate is ineligible for recall of sentence.
The holding in Johnson clarified existing case law under which defendant could have filed a timely petition for resentencing. In Johnson, the Supreme Court consolidated appeals by two defendants sentenced as third strike offenders in which they alleged that their petitions for resentencing under the Act were erroneously denied. (Johnson, supra, 61 Cal.4th at pp. 679-680.) One of the defendants, Oscar Machado, was convicted of a strike and a nonstrike. Because he had two prior strikes, he was sentenced to an indeterminate term for each of the convictions. The trial court denied his petition for resentencing, concluding that his current strike conviction disqualified him from seeking relief on his nonstrike conviction. (Id. at pp. 679-680.)
Affirming Machado, the Supreme Court held that a defendant may petition for resentencing on a conviction that is neither serious nor violent even if the defendant has a current conviction that is serious or violent because "an inmate's eligibility for resentencing [should] be evaluated on a count-by-count basis." (Johnson, supra, 61 Cal.4th at pp. 687-688.) Thus, the court concluded that "an inmate may obtain resentencing with respect to a Three Strikes sentence imposed for a felony that is neither serious nor violent, despite the fact that the inmate remains subject to a third strike sentence of 25 years to life." (Id. at p. 688.)
Machado, supra, 226 Cal.App.4th 1044 is significant for more than its existence from May to July 2014. When the issue was heard in the Supreme Court on July 30, 2014, with the grants of review in all the cases on threshold eligibility, there was at least one case that favored defendant's side of the issue. That was, of course, Machado. And, although only Machado supported defendant's position at that time, the Supreme Court opted to affirm Machado. Thus, defendant's position throughout 2014 and before the deadline was not nearly as hopeless as he portrays it. In fact, some might say that if the Courts of Appeal are split on a given issue, both sides have an equal chance of prevailing.
Given the situations in 2014, and particularly in the early summer of that year, and also given that there was a clear two-year limitations period, there simply was no reason not to file the section 1170.126 petition prior to the deadline. Many inmates did file their petitions in a timely manner without the hope that the law would change in their favor. There was absolutely no downside for defendant to have done the same and filed his petition. Another way of evaluating the decision not to file is that there was nothing to be gained by not filing. Defendant's chances were not improved by not filing. In fact, they were diminished by not filing, in that defendant was not in a position to benefit from what eventually happened. It was much better to be waiting for a Supreme Court decision with a petition on file than to wait for it with an unfiled petition.
As far as not filing because the public defender's office opted not to file a petition on his behalf did not preclude defendant from filing a petition in propria persona as he did in this case. Furthermore, defendant's reliance on Benoit, supra, 10 Cal.3d 72 is misplaced. In Benoit, the California Supreme Court extended the principle of constructive filing to situations in which an incarcerated defendant relied on his defense counsel's promise to file a notice of appeal. (Benoit, at pp. 86-88.) The court extended principles previously applied in cases where defendants had relied upon prison authorities to mail their notice of appeal to the court, reasoning: "[W]e can see some reason to excuse a prisoner unlearned in the law who has relied upon the assurance of his trial counsel that the notice of appeal will be timely filed by the latter since the prisoner would be more justified in relying on his counsel who had represented him and might have some continuous concern for him than upon a prison official who was not an attorney and had no familiarity with his case." (Id. at p. 86.) The court noted that the doctrine may be applied to protect defendants who have been "lulled into a false sense of security in believing that an attorney—especially [his or her] trial attorney—will carry out his undertaken task." (Id. at p. 87.) In reaching its holding the court found two factors significant: the defendant was "fully diligent in his repeated efforts" to ensure that his petition was timely filed and the delayed notice of appeal was due to circumstances beyond the defendant's control. (Id. at p. 89.)
The facts of this case are distinguishable. Central to the holding in Benoit is the notion that an attorney who takes responsibility for the timely filing of a defendant's notice of appeal is derelict if he or she subsequently fails to do so. Here, there is no evidence in the record to show defendant's trial counsel promised to file a petition for resentencing. To the contrary, the public defender's office stated that it had declined to file the petition. Unlike the defendant in Benoit, defendant was not given a false sense of security that his petition would be filed or the delay in filing the petition was due to circumstances beyond defendant's control. Once defendant was made aware that the public defender's office would not be filing a petition on his behalf, defendant still could have proceeded in propria persona to file the petition in a timely fashion. His failure to do so, or to diligently seek other methods of obtaining relief, further distinguishes defendant's case from the facts and circumstances of Benoit. (Benoit, supra, 10 Cal.3d at p. 89 [a defendant's "diligent efforts in addition to the reasonable reliance upon his attorney's explicit promise entitle[d] [the defendant] to constructive filing of his appeal"].)
During oral argument, defendant's appellate counsel argued the recent decision in People v. Drew (2017) 16 Cal.App.5th 253 (Drew) "mirrors" this case and supports his position that defendant exercised good faith to allow constructive filing of his belated petition under Benoit. Although we agree Drew "mirrors" this case, we disagree with counsel's conclusion Drew supports his position.
In Drew, supra, 16 Cal.App.5th 253, similar to the instant matter, the defendant waited nearly two years after expiration of the statutory deadline for relief under Proposition 36 before filing his petition. He also claimed in the court below that he was not aware he might be eligible for resentencing because of his " 'life sentences on other nonqualifying offenses and cases' and it was not until Johnson was decided in July 2015 that it was clear his sentence . . . was eligible for resentencing notwithstanding his other nonqualifying offenses." (Drew, supra, at pp. 241-242, fns. omitted.) Division One of this court concluded, "Because there was a clear two-year limitations period that was set to expire at a time when the state of the law was at worst uncertain, providing [the defendant] with a reasonable and well-supported argument in favor of his eligibility for resentencing, there was simply no legal downside to filing the recall petition prior to the deadline. Under these circumstances, the court could well conclude there was no good cause for the delay." (Id. at p. 242, fn. omitted.)
On appeal, in contrast to his arguments in the trial court, the defendant in Drew conceded his delay "was not really attributable to pre-Johnson uncertainty," and instead "during a time he lacked legal representation (for which he should be excused)." (Drew, supra, 16 Cal.App.5th at p. 242.) "In effect," as the court in Drew pointed out, the defendant argued "there should be no time limits for filing a recall petition as long as no one told him he had the ability to request resentencing." (Ibid.) The Drew court rejected the defendant's claim, stating "Were this contention accepted, it would be tantamount to erasing the limitations period from the statute in all but the most unusual of circumstances." (Ibid.) The court noted that there was no evidence the defendant "did anything to investigate potential relief for three and one-half years," such as contact the court, request assistance from the public defender's office that previously represented him, or inquire of anyone at the California Department of Corrections and Rehabilitation. (Id. at p. 243.) In conclusion, the Court of Appeal did not accept the defendant's "claim on appeal that faced with years during which there is no hint of activity or even de minimus effort by the inmate to protect his rights, a trial court abuses its discretion when it determines there is no good cause to dispense with the legislatively prescribed deadline for filing recall petitions." (Ibid.)
Here, although defendant did a little more than the defendant in Drew, i.e., contact the public defender's office to file a Proposition 36 recall petition on his behalf, we cannot find, as the court in Drew concluded, "a trial court abuses its discretion when it determines there is no good cause to dispense with the legislatively prescribed deadline for filing recall petitions." (Drew, supra, 16 Cal.App.5th at p. 243.) Defendant merely made a "de minimus" effort to protect his rights. The delay was lengthy and the reason for the defendant's inactivity is unexplained except by the public defender's office opting not to file a petition on defendant's behalf. Defendant was not precluded from filing a petition in propria persona as he did in this case. The conclusion reached in Drew does not support defendant's good faith argument. There was no evidence in the record to show the public defender's office promised to file a petition for recall and resentencing on defendant's behalf, and defendant was not given a false sense of security his petition would be filed. As previously noted, once defendant was made aware the public defender's office would not file a petition on his behalf, defendant still could have proceeded in propria persona to file the petition in a timely manner. We cannot conclude it was an abuse of discretion for the trial court to find that defendant did not show good cause for his late-filed recall petition.
In sum, taking into account the realities of our legal system, neither reason given by defendant in filing his petition under section 1170.126 a year and a half after the filing deadline for Proposition 36 petitions passed are based on a sound reasoning. In fact, both reasons for the delay do not pass scrutiny or constitute good cause. As far as ineligibility is concerned, that became an open question as soon as the Supreme Court granted review in July 2014. Defendant was no less or more eligible when he ultimately filed his petition than he was prior to the expiration of the two-year limitations period.
We hold as a matter of law that, on these facts, neither reason given by defendant for not filing a timely petition under section 1170.126 before the statutory deadline was supported by good cause for the delay under subdivision (b) of section 1170.126.
Defendant also asserts that his subsequent 2010 second degree murder convictions do not preclude Proposition 36 resentencing relief on his current 2009 nonviolent and nonserious convictions. Defendant further argues that this court may grant relief without remand for determination of whether defendant poses " 'an unreasonable risk of danger to public safety' " under section 1170.126, subdivision (f), as he is serving a 209-year-to-life sentence. Because we find the trial court properly denied defendant's petition on the ground it was untimely, we need not decide defendant's remaining issues.
IV
DISPOSITION
The order denying defendant's petition under section 1170.126 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.