Opinion
F078758
03-29-2021
THE PEOPLE, Plaintiff and Respondent, v. DANIEL KAHAKU, Defendant and Appellant.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SC080258A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Peña, J. and Snauffer, J.
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In 2000, defendant Daniel Kahaku was sentenced to 25 years to life as a third strike defendant pursuant to the "Three Strikes" law (Penal Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In 2018, he filed a petition to recall his sentence pursuant to the Three Strikes Reform Act of 2012 (the Act) (§ 1170.126, subd. (b)). The trial court denied his petition as untimely. On appeal, defendant contends the trial court erred in denying the petition. The People disagree. Defendant also applies for expansion of appellate counsel's appointment to include filing a habeas petition. We affirm and deny defendant's application.
All further statutory references are to the Penal Code.
PROCEDURAL SUMMARY
On May 16, 2000, the Kern County District Attorney charged defendant and one or more other persons with conspiracy to bring heroin into a state prison (§§ 182, subd. (a)(1), 4573; count 1), and bringing, sending, or assisting in bringing heroin into a state prison facility (§ 4573; count 2). The complaint further alleged defendant had suffered two prior felony "strike" convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served two prior prison terms (§ 667.5, subd. (b)).
On June 7, 2000, defendant was sentenced on count 1 to a term of 25 years to life as a third strike defendant (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
The abstract of judgment reflects that defendant pled guilty to count 1 on May 10, 2000—six days before the complaint was marked filed.
On November 6, 2012, voters approved Proposition 36, the Act, which (among other things) allowed certain defendants sentenced as third strike defendants to petition for relief.
On April 27, 2018, defendant filed a petition to recall his sentence pursuant to section 1170.126.
On May 25, 2018, the trial court appointed counsel for defendant. Defendant's counsel filed a supplemental brief, arguing defendant's delay in filing his petition for recall was excusable due to his ignorance of the law.
On January 3, 2019, the trial court denied defendant's petition, finding that defendant did not show "good cause to ... justify his failure to file [the petition] within the first two years."
On January 30, 2019, defendant filed a notice of appeal.
DISCUSSION
Because defendant's appeal challenges the trial court's decision to deny his petition as untimely, the facts underlying his conviction are not relevant to this appeal.
Section 1170.126 Petition
Defendant contends that good cause existed to excuse the late filing of his petition and the trial court therefore abused its discretion in denying his petition. Specifically, he contends that his belief that he was ineligible for relief, his belief that an attorney would contact him if he was eligible for relief, the spirit of the Act, and the absence of prejudice to the People if his petition is heard all support excusing the tardiness of his petition. We disagree.
Under the Three Strikes law as it existed prior to the Act, a defendant convicted of two prior serious or violent felonies would be subject to a sentence of 25 years to life upon conviction of a third felony. (Former §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) Under the Act, however, a defendant convicted of two prior serious or violent felonies is subject to the 25-years-to-life sentence only if the third felony is itself a serious or violent felony. If the third felony is not a serious or violent felony, the defendant will receive a sentence as though the defendant had only one prior serious or violent felony conviction, and is therefore a second strike, rather than a third strike, defendant. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).)
The Act also provided a means whereby prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction. (§ 1170.126, subd. (b).) Any such petition was required to be filed "within two years after the effective date of the [A]ct [(November 7, 2012)] ... or at a later date upon a showing of good cause." (Ibid.)
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. Further, a current inmate is not entitled to resentencing if it would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).)
We review denial of a petition to recall sentence for abuse of discretion. (People v. Williams (2018) 19 Cal.App.5th 1057, 1062; People v. Drew (2017) 16 Cal.App.5th 253, 259-260 (Drew); People v. Buford (2016) 4 Cal.App.5th 886, 895.) " 'This standard involves abundant deference to the trial court's rulings.' " (Williams, supra, 19 Cal.App.5th at p. 1062.)
The Court of Appeal in Drew, supra,16 Cal.App.5th at pages 259-260, concluded that a defendant's subjective belief of ineligibility for relief and lack of representation by counsel do not provide good cause to excuse the delay in filing a petition pursuant to subdivision (b) of section 1170.126. Defendant "recognizes that the record on appeal in this case is similar to that in Drew." However, he contends Drew was wrongly decided. We disagree.
In Drew, the defendant was sentenced as a third strike defendant in 1999. (Drew, supra, 16 Cal.App.5th at p. 255.) In September 2016, nearly four years after enactment of the Act and nearly two years after the date by which petitions were to be filed absent a showing of good cause, the defendant filed a petition to recall his sentence. (Ibid.) The trial court issued an order to show cause why the petition should not be dismissed as untimely. (Ibid.) The defendant responded, "that he 'never contacted anyone seeking relief because he did not know he was eligible' and his case was never 'caught by any of the myriad agencies who were working to identify and file the cases that were eligible for relief.' " (Ibid.) The trial court denied the petition, concluding that defendant had not shown good cause to excuse the delay in filing. (Id. at p. 256.)
On appeal, the Drew court stated its "task [was] to distinguish excusable delays from inexcusable ones." (Drew, supra, 16 Cal.App.5th at p. 257.) It acknowledged that it was addressing a question of first impression—"neither section 1170.126 nor any published authority has defined 'good cause' within the meaning of [subdivision (b) of section 1170.126]." In determining what constitutes good cause for purposes of subdivision (b) of section 1170.126, the Drew court drew partially from section 1382 (speedy trial) and section 861 (one-session preliminary hearing) jurisprudence. It concluded that " 'the nature and strength of the justification for the delay ..., the duration of the delay,' " and common-sense consideration of the circumstances were relevant factors for determining good cause for purposes of subdivision (b) of section 1170.126. (Drew, at pp. 257-258, quoting People v. Sutton (2010) 48 Cal.4th 533, 546.) However, it also concluded that "the prejudice to ... the prosecution that is likely to result from the delay" "in most cases ... will not be germane" to the good cause determination. (Ibid.) The Drew court explained that prejudice to the prosecution resulting from the defendant's delay is not a "significant factor under section 1170.126" because the section 1170.126, subdivision (b) determination does not depend upon "evidence [that] can become stale, [or] memories [that] can fade"—"the factors guiding whether to grant ... resentencing rest on largely immutable facts contained in [court] records ...." (Drew, at p. 258; § 1170.126, subd. (g).)
Section 1382 requires a trial court to dismiss a criminal action if the prosecutor fails to advance the matter in accordance with various time requirements, "unless good cause to the contrary is shown." (§ 1382, subd. (a).)
On appeal, the defendant in Drew argued his delay in filing should have been excused for the time he was not represented by counsel. (Drew, supra, 16 Cal.App.5th at p. 259.) "In effect, he contend[ed] 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 Court of Appeal rejected that argument, reasoning that if "this contention [was] accepted, it would be tantamount to erasing the limitations period from the statute in all but the most unusual of circumstances." (Ibid.) The court further emphasized that good cause to excuse the delay was lacking because "there was no evidence [that the defendant] did anything to investigate potential relief for three and one-half years ... even though he was ... serving a life sentence that at least arguably was impacted by the [Act]." (Id. at p. 260.) We agree with the Drew court's assessment of the relevant considerations and analysis.
The case at bar closely resembles Drew. The record contains no indication that defendant took any action to seek relief for almost five and one-half years—from the November 7, 2012, effective date of the Act to the April 27, 2018, filing of his petition. Defendant filed his petition nearly three and one-half years after the deadline set by section 1170.126. Defendant contends it was reasonable for him to believe an attorney would contact him if he was eligible for relief, but the same argument was rejected in Drew. (Drew, supra, 16 Cal.App.5th at p. 260 ["[T]he delay was lengthy and the reason for [the defendant's] inactivity is unexplained except by the absence of a lawyer proactively advising him regarding his rights and remedies."].) We conclude defendant failed to demonstrate good cause to excuse the late filing of his petition.
Defendant contends that the Drew court was wrong to borrow from section 1382 jurisprudence for the good cause standard because the legislative intent behind speedy trial law is different from that of the Act. He describes the intent of the Act as "to restore justice and save money ...." While we agree with defendant's description of the goals of the Act, section 1170.126 also makes clear that the time for relief is not indefinite. The trial court was not required to excuse defendant's three and one-half year late filing merely because defendant may have been eligible for relief if the petition had been timely filed. Even if we did agree that Drew was wrongly decided, and a different standard of good cause should apply—we do not—there is nothing in the record that supports a finding of good cause to excuse defendant's late filing by any standard of good cause. Application for Expansion of Appointment
Defendant requests that his appellate counsel be appointed to pursue habeas relief on his behalf. His proposed argument in that brief largely reiterates the argument contained in his opening and reply briefs. However, in his request for appointment of counsel, he also suggests that the good cause standard for recalling remittitur is more appropriate than the standard articulated in Drew. He cites People v. Grunau (2008) 169 Cal.App.4th 997, 1005, for the proposition that good cause can exist to set aside a remittitur (and therefore also to excuse delay in filing a § 1170.126 petition) even upon an eight-year delay if the defendant is diligent in pursing relief. Even assuming the standard for setting aside remittitur is a more appropriate standard, which we do not decide, defendant cannot meet that standard. He has not shown that he was diligent in pursuing relief. (Grunau, at p. 1005.)
Defendant has applied for expansion of his appellate counsel's appointment to include preparation and filing a petition for writ of habeas corpus, mandate, or prohibition. Defendant's proposed argument on petition for writ of habeas corpus is nearly identical to his argument in this appeal. Defendant's proposed petition would include evidence not presented below. However, before ruling on his petition to recall sentence, the trial court afforded defendant an opportunity to create a record demonstrating good cause for his delay in filing his petition and appointed counsel to assist defendant in doing so. We will not expand the appointment of counsel to include preparation and filing of a new petition that would relitigate the arguments we now reject and present evidence that should have been presented below.
Defendant's unsigned proposed declaration states that defendant: believed an attorney would reach out to him regarding relief, did not know his former attorney was deceased, reads at a seventh grade level, has no friends or family outside of prison, and was informed by a prison counselor shortly after enactment of the Act that he was ineligible for relief. --------
DISPOSITION
The order is affirmed. Defendant's request for expansion of appointment of counsel is denied.