Opinion
F079940
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ROSS MADSEN, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CF97591209)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Gary D. Hoff, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
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INTRODUCTION
Appellant Steven Ross Madsen appeals from the trial court's order denying his post judgment motions to set aside the information, pursuant to Penal Code section 995, and for recall of his sentence pursuant to section 1170, subdivision (d). Appellate counsel filed a brief pursuant to People v. Wende (1979) 46 Cal.3d 436.
References to code sections are to the Penal Code.
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In a first amended information filed on April 15, 1998, Madsen was charged with 15 offenses, including violating former section 288a, subdivision (c), oral copulation by force, duress, menace, or threat of bodily harm, and violating section 422, criminal threats. Madsen was convicted by a jury on April 23, 1998, of two counts of violating former section 288a, subdivision (c); one count of violating section 245, subdivision (a)(1), assault with a deadly weapon; three counts of violating sections 211 and 212.5, robbery; one count of violating section 243.4, sexual battery; and one count of violating section 422, criminal threats. Multiple enhancements also were found true.
This offense is now numbered section 287, subdivision (c)(2)(A). (See Stats. 2018, ch. 423, § 49, eff. Jan. 1, 2019.) --------
Madsen was sentenced on May 21, 1998, to a total determinate term of eight years eight months, followed by two indeterminate, concurrent terms of 25 years to life. Madsen appealed in People v. Madsen (June 6, 2000, F031004 [nonpub. opn.]), we reversed the section 422 conviction and a section 12022.3, subdivision (a) enhancement appended to another count. The sentence was vacated, and the matter remanded for resentencing.
At the December 15, 2000 resentencing, Madsen was sentenced to a total determinate term of seven years, followed by concurrent terms of 15 and 25 years to life. The abstract of judgment references the two oral copulation convictions and refers to "PC 288(A)(C)" for the code section. The section 245, subdivision (a)(1) conviction is not reflected.
On December 21, 2017, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court questioning whether there was an error in the abstract of judgment. The letter noted the absence of the section 245, subdivision (a)(1) conviction, and pointed out the listed code section for the oral copulation convictions was erroneous.
An amended abstract of judgment was filed on January 8, 2018, correctly stating the code section for the oral copulation counts as former section 288a, subdivision (c) and including the section 245, subdivision (a)(1) conviction.
On August 22, 2019, Madsen filed a motion for resentencing pursuant to section 1170, subdivision (d)(1), and attached the letter from the CDCR. He also filed a motion to set aside the first amended information, or at least one count, pursuant to section 995.
On August 26, 2019, the trial court issued an order denying both of Madsen's motions. On September 6, 2019, Madsen filed a timely notice of appeal.
DISCUSSION
Madsen appealed from the August 26, 2019 order denying his motion to recall his sentence and his motion to set aside the first amended information.
Appellate counsel filed a Wende brief on November 7, 2019. That same day, this court issued its letter to Madsen inviting supplemental briefing. Madsen responded by sending a letter requesting a new attorney because counsel had filed a Wende brief. By order dated November 21, 2019, Madsen's request was denied. The order noted that the filing of a Wende brief was not grounds for removal of counsel.
Madsen filed a second letter stating he did not accept the Wende brief, wanted new appellate counsel appointed, and requested an extension of time to file a supplemental brief. This court issued an order on December 9, 2019, denying the request for new counsel, denying any request for Madsen to represent himself, and granting a 30-day extension of time to file a supplemental brief.
On December 11, 2019, Madsen filed a supplemental letter brief, in which he argues the trial court erred in denying both his section 1170, subdivision (d)(1) motion and his section 995 motion.
We first address Madsen's section 995 motion. As the trial court noted in its order denying the motion, Madsen filed a section 995 motion in the trial court challenging the entire information and that motion was denied on February 25, 1998. Moreover, section 996 precludes a defendant from objecting to an information or indictment unless timely made. Section 1510 requires a section 995 motion be filed within 60 days following the defendant's arraignment on the information or indictment on a felony. Challenging the first amended information 21 years after its filing, after the trial, and after the convictions are final, is not timely and is therefore not cognizable. The trial court's order denying the section 995 motion correctly notes that Madsen is "much too late to bring such an argument."
Regarding Madsen's motion to recall his sentence and for resentencing pursuant to section 1170, the trial court properly denied that request. Section 1170, subdivision (d)(1) provides that a trial court may, within 120 days of the date of commitment of a defendant, recall a sentence on its own motion and resentence the defendant. For a state prison inmate, like Madsen, the sentence may be recalled at any time upon the recommendation of the secretary of the CDCR or the Board of Parole Hearings. Significantly more than 120 days has elapsed since Madsen was committed to state prison and there is no request in the record from the Board of Parole Hearings or the secretary of the CDCR for recall and resentencing. Madsen's section 1170, subdivision (d)(1) motion is not timely and therefore, is not cognizable.
After an independent review of the record, we find no reasonably arguable factual or legal issues exist.
DISPOSITION
The August 26, 2019 order denying the sections 995 and 1170, subdivision (d)(1) motions is affirmed.