Opinion
E073699
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS REYES RIOS, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB036912) 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. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Jorge Luis Reyes Rios appeals from an order denying his petition for recall and resentencing of his life sentence for his current commitment offenses of six counts of robbery (Pen. Code, § 211) with the personal use of a firearm (§12022.53, subds. (b), (c), & (d)) under section 1170.18, subdivision (a). Based on our independent review of the record, we find no error and affirm the order.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from the first amended information.
Between October 29, 2002, and November 14, 2002, defendant committed a string of robberies with the use of a handgun. During some of the robberies, defendant personally and intentionally discharged the handgun.
On October 28, 2003, a jury found defendant guilty of six counts of robbery (§ 211). The jury also found true that defendant personally used a firearm (§ 12022.53, subd. (b)) (counts 1-6); that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) (counts 1, 2, 4, and 5); and that defendant personally and intentionally discharged a firearm, which proximately caused great bodily injury (§ 12022.53, subd. (d)) (counts 1 and 2). Following an appeal and remand for resentencing, defendant was sentenced to a total term of 84 years eight months in state prison.
On November 4, 2014, voters enacted Proposition 47, entitled "the Safe Neighborhoods and Schools Act" (hereafter Proposition 47). It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classifies as misdemeanors certain drug- and theft-related offenses that previously were felonies or "wobblers," unless they were committed by certain ineligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091 (Rivera).) Proposition 47 also created a new resentencing provision: Section 1170.18. Under section 1170.18, a person currently serving a felony sentence or a person who has completed his or her sentence, whether by trial or plea, for an offense that is now a misdemeanor under Proposition 47, may petition before the trial court that entered the judgment of conviction in his or her case to have the felony conviction designated as a misdemeanor. (§ 1170.18, subds. (a) & (f).)
On June 26, 2019, defendant filed a petition for resentencing pursuant to section 1170.18.
On August 23, 2019, the trial court denied defendant's section 1170.18 petition to reduce his robbery offenses to misdemeanors and resentence defendant, finding "defendant is statutorily ineligible" for resentencing.
On September 25, 2019, defendant filed an amended notice of appeal from the denial of his section 1170.18 petition for resentencing.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record. Counsel has raised the issues of whether defendant was entitled to be personally present at the hearing on the petition and whether there should have been a showing the judge that had sentenced defendant was unavailable when a different judge heard the petition.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
Defendant merely filed a letter on December 30, 2019, stating, "I request the order of the Court be brought forth" without making any arguments. --------
As previously noted, Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. (Rivera, supra, 233 Cal.App.4th at p. 1091.) Among the crimes reduced to misdemeanors by Proposition 47, rendering the person convicted of the crime eligible for resentencing, are: shoplifting where the property value does not exceed $950 (§ 459.5); petty theft, defined as theft of property where value of the money, labor, real or personal property taken does not exceed $950 (§ 490.2); and receiving stolen property where the property value does not exceed $950 (§ 496). (§ 1170.18, subd. (a).) A robbery conviction under section 211 is not an eligible offense. Therefore, the trial court properly denied defendant's petition.
In addition, defendant did not have a right to be at the hearing. When a defendant files a petition to recall a sentence under Proposition 47, the trial court must first decide the defendant's eligibility for the requested relief. (§ 1170.18, subds. (a), (b), (i).) "This decision typically can be made without a hearing because eligibility is often obvious on the incontrovertible written record. [Citation.] Indeed, it is well established that a represented defendant has no constitutional or statutory right to be present to address purely legal questions or where his or her 'presence would not contribute to the fairness of the proceeding.'" (People v. Fedalizo (2016) 246 Cal.App.4th 98, 109.) In certain circumstances, where a factual showing may be necessary, or a factual dispute exists as to eligibility, a hearing may be necessary. Under those circumstances, courts have found that a defendant has the right to be present. (People v. Simms (2018) 23 Cal.App.5th 987, 998.)
Here, there was no factual dispute that defendant committed a string of robberies with the use of a handgun. Therefore, the issue of whether defendant's section 211 convictions qualified for Proposition 47 relief was purely legal and was properly denied as a matter of law. No hearing to resolve a factual dispute was needed. (People v. Simms, supra, 23 Cal.App.5th at p. 997.) Accordingly, defendant cannot argue that he had a right to be present at the hearing. (Id. at p. 998.)
Furthermore, we reject the claim that there should have been a showing the judge that had sentenced defendant was unavailable when a different judge heard the petition. Section 1170.18, subdivision (l), provides, "[i]f the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application." Here, an inference can be made that the court that had originally sentenced defendant was not available. Moreover, assuming the error implicated defendant's constitutional rights when an unavailability finding was not made, any error was harmless beyond a reasonable doubt because section 211 convictions are not eligible offenses and defendant's petition was properly denied as a matter of law. (See People v. Simms, supra, 23 Cal.App.5th at p. 998 [the error "may be deemed harmless only if we can conclude beyond a reasonable doubt that the deprivation did not affect the outcome of the proceeding"].)
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The order denying defendant's section 1170.18 petition for recall and resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. RAPHAEL
J.