Opinion
H051355
05-28-2024
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY WALKER, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 146125
THE COURTJeffrey Walker filed a petition for "clarification and reconsideration" pursuant to Penal Code section 1473.6, under which "any person no longer unlawfully imprisoned or restrained may prosecute a motion to vacate a judgment" based on "newly discovered evidence." (§ 1473.6, subd. (a).) The trial court denied the petition. Appellate counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Walker subsequently filed a supplemental brief on his own behalf. For the reasons set forth below, we affirm the order.
All statutory references are to the Penal Code.
I. Factual and Procedural Background
The underlying facts are not relevant to the issues raised on appeal. Walker asks this court to take judicial notice of the opinion issued by the California Supreme Court in People v. Walker (2021) 12 Cal.5th 177 (Walker II), which arose out of later proceedings against Walker in San Francisco County Superior Court, seemingly only to establish the underlying facts. That request is denied. Walker's request for judicial notice of the nonpublished opinions issued by this court in People v. Walker (Oct. 6, 1994, H011846) (Walker I) and People v. Walker (June 10, 2022, H049341) (Walker III), both of which arose from the same underlying criminal action as the instant appeal, is granted, as they are relevant to discerning the procedural history of the action.
In 1991, Walker was charged by information with forcible rape (§ 261, subd. (a)(2); count 1) and unlawful sexual intercourse (§ 261.5; count 3) involving victim T.T. (Walker I, supra, H011846 [pp. 1-2].) He was also charged with forcible rape of a second victim, M.T. (§ 261, subd. (a)(2); count 2). (Id. [p. 2].) He submitted counts 2 and 3 for trial before the court based on a preliminary examination transcript, police reports, and a sexual assault investigation report. (Ibid.) The prosecution dismissed count 1, and the trial court found Walker guilty on counts 2 and 3. (Ibid.) The court originally sentenced Walker to 2 years for unlawful sexual intercourse in count 2, and 6 years consecutive for the forceable rape in count 3. (Id. [p. 4].) On appeal, we remanded the case for further sentencing proceedings based on the court's failure to state reasons for its sentencing decision. (Id. [pp. 4-5].) On remand, the trial court imposed the same sentence, setting forth the basis for its decision, following which we affirmed the judgment. (Id. [pp. 7, 18].)
Walker subsequently petitioned the trial court for a finding of factual innocence under section 851.8 as to the dismissed count. The trial court denied the petition based on Walker's 20-year delay in filing for relief, and because of the related conviction in count 3 involving the same victim. Walker appealed from the order. This court dismissed Walker's appeal after counsel filed a brief raising no issues on appeal, and Walker failed to file a supplemental brief. (Walker III, supra, H049341 [p. 2].)
In 2021, Walker filed a second petition pursuant to section 851.8, claiming new evidence of innocence. The trial court denied the second petition, again citing Walker's felony conviction in count 3, which was based on the same event and victim as the dismissed count 1. (Walker III, supra, H049341 [p. 2].) Walker appealed after the trial court denied his motion for reconsideration. (Ibid.) This court dismissed the appeal, finding that he failed to raise an arguable issue on appeal after his appointed attorney filed a no-issue brief. (Id. [pp. 3, 5].)
In December 2022, Walker filed a petition under section 1473.6 (the 1473.6 petition). Walker based the petition on claims of prejudicial error and ineffective assistance on the part of his trial counsel, judicial misconduct, prosecutorial misconduct, and a "damaging and illegal plea agreement . . . ." The trial court denied the petition in February 2023, finding that appellant provided "no new evidence, let alone evidence of misconduct or false testimony by a government official, as required by section 1473.6." The court found that "street photos obtained in 2021 from the location of one of [the] crime scenes" did not demonstrate "that any government official committed misconduct or provided false testimony at trial in 1991." The court further determined that changes to section 1016.8 did not constitute "new evidence" under section 1473.6, and that Walker had a court trial and did not plead guilty or enter into a plea agreement in the case. Walker filed a timely notice of appeal from the order denying the 1473.6 petition, appeal number H050850. On April 26, 2023, this court granted Walker's request to dismiss that appeal.
At Walker's request (Exhs. 2, 3, and 7 to his supplemental brief), and on the court's own motion, we take judicial notice of the record filed in appeal number H050850, appellant's first appeal related to the 1473.6 petition, discussed further, post. The court denies Walker's request to take judicial notice of exhibits 1, 4, 5, and 6 to his supplemental brief, as appellant has not demonstrated relevancy of these exhibits to this appeal, or the documents already exist in the record on appeal.
After initiating appeal number H050850 from the denial of his section 1473.6 motion, Walker returned to the trial court and filed his first motion for clarification or reconsideration of the February 2023 order denying his section 1473.6 petition. He resubmitted the motion in April 2023, shortly before dismissing appeal number H050850. He argued that he had entered into a plea agreement, citing Bunnell v. Superior Court (1975) 13 Cal.3d 592 (Bunnell), and claimed he presented "new facts of documents he . . . had never presented to any court . . . ." Walker argued that he had not been advised of the lifetime section 290 requirement during the original proceedings; he had ineffective assistance of both trial counsel and appellate counsel; the prosecutor and court failed to ensure a valid plea agreement; it was "fraud upon government" to introduce the preliminary transcript as true without affording Walker the opportunity to challenge the facts alleged therein; there were unspecified "Brady violations"; and, Walker was the victim of racial bias or prejudice.
Under section 290, subdivisions (c)(1) and (d)(3)(K), a person convicted of violating section 261, subdivision (a)(2) is required to register for life as a sex offender.
The trial court denied the motion for reconsideration in June 2023. The court reiterated that Walker did not plead guilty based on an agreement, but had a court trial based on the submission of the preliminary hearing transcript. The court refuted Walker's assertion that all cases submitted to the trial court based on the transcript of the preliminary hearing are "plea cases," quoting the California Supreme Court in Bunnell, supra, 13 Cal.3d at page 606 ("a submission on the transcript is a trial whether or not it is 'tantamount to a plea of guilty,' is a 'slow plea,' or is part of a 'bargain' with the prosecutor"). The court further found Walker did not provide documentary evidence supporting his contention that there was a plea agreement in his case, which is required to obtain postconviction relief.
The trial court determined Walker was "procedurally barred" from claiming he had not been informed of the lifetime section 290 registration requirement because he had raised that challenge in prior proceedings. Despite his claims to the contrary, the trial court found Walker had been notified of the registration requirement under section 290, rendering meritless any "derivative claims, such as ineffective assistance of counsel and claims attempting to fault the prosecutor . . . ." Walker timely appealed from the order denying the motion for reconsideration, which is the matter now before us.
Appellate counsel filed an opening brief pursuant to the procedure set forth in Delgadillo, supra, 14 Cal.5th at pages 231-232. We notified Walker that he could file a supplemental brief on his own behalf, and that failure to do so would result in dismissal of the appeal as abandoned. (Id. at p. 232.) In his supplemental brief, Walker argues that he did not intend to give up his appellate rights when he dismissed appeal number H050850. Rather, he wanted the trial court to first rule on his reconsideration motion, after which he would appeal if the court denied the motion.
Walker also raises various claims related to ineffective assistance of counsel. He contends his trial attorney failed to advise him regarding the lifetime registration requirement of section 290. He asserts the attorney who represented him in his appeal from the conviction did not raise appropriate arguments on appeal. Walker claims the attorney who represented him in appeal number H050850 provided ineffective assistance of counsel regarding his abandonment of that appeal. Regarding the instant appeal, Walker argues the attorney now representing him made numerous errors in the recitation of facts in the no-issue brief, and has a conflict in this matter but refuses to "conflict off case."
In addition to ineffective assistance of counsel claims, Walker argues the trial court and the prosecutor at his initial trial failed to advise him regarding the lifetime registration requirement of section 290 and/or to ensure that his plea was valid. Walker contends he produced new facts in the 1473.6 petition which the trial court did not properly consider.
Finally, Walker suggests the trial court did not have jurisdiction to rule on his motion for reconsideration because there was a notice of appeal pending which divested the trial court of jurisdiction.
Having reviewed the supplemental brief, we conclude that Walker does not raise an arguable issue on appeal. Accordingly, we affirm the trial court's order denying the motion for reconsideration of its denial of Walker's section 1473.6 petition.
II. Discussion
An issue is arguable if it has a reasonable potential for success, and, if resolved favorably for the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
As an initial matter, the order denying Walker's motion for reconsideration is not clearly appealable. By statute, a defendant may appeal "[f]rom any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b).) However, case law has limited the otherwise broad reach of this rule where an appeal would "virtually give defendant two appeals from the same ruling, and since there is no time limit within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.]" (People v. Thomas (1959) 52 Cal.2d 521, 527 (Thomas) [no appeal lies from an order denying a motion to vacate a conviction on a ground that could have been reviewed on appeal from the judgment].)
Even if the order denying the motion for reconsideration is appealable, Walker has not raised an arguable issue in his supplemental brief. First, to the extent Walker seeks relief from the dismissal of appeal number H050850, he cannot seek such relief in the appeal before us now, which is from the June 2023 order denying his motion for reconsideration. The order dismissing appeal number H050850 is final, and Walker has not sought relief from that dismissal. (See Cal. Rules of Court, rules 8.272, 8.366; People v. Jordan (2018) 21 Cal.App.5th 1136, 1143 (Jordan) ["Waiver precludes successive appeals based on issues ripe for consideration in the prior appeal and not brought in that proceeding."].) Nor can we deem the August 2023 notice of appeal as Walker's request to reinstate review of the February 2023 order denying the original petition. The notice of appeal now before us was filed in August 2023. It is not timely as to the February 2023 order denying the section 1473.6 petition. (Cal. Rules of Court, rule 8.308.)
In affirming the June 2023 order denying Walker's motion for reconsideration, we make no comment about the availability or viability of relief from the order dismissing appeal number H050850.
Walker's claims of ineffective assistance of trial counsel are not cognizable in this appeal because they should have been raised in the appeal from his original conviction. That appeal, which resulted in an opinion from this court in 1994, is long final. (Jordan, supra, 21 Cal.App.5th at p. 1143; Thomas, supra, 52 Cal.2d at p. 527.) Similarly, claims of ineffective assistance of appellate counsel in prior appeals should have been raised either in a motion to relieve counsel or in a separate petition for habeas corpus. (See In re Reno (2012) 55 Cal.4th 428, 487-488, superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th 720, 728.)
Walker also alludes to claims of ineffective assistance of appellate counsel in the appeal here. He states that he "reserves the right to argue I.A.C. on appellate counsel," but he has not made a motion to relieve counsel, or filed a separate petition for habeas corpus, which are the appropriate vehicles for such a challenge. (In re Reno, supra, 55 Cal.4th at pp. 487-488.) And even if we treat Walker's contentions regarding appellate counsel as a motion to relieve counsel and address the argument on its merits, Walker has failed to make the required showing justifying removal of his attorney.
To show ineffective assistance of counsel, an appellant must show that counsel's performance was deficient, falling below an objective standard of reasonableness, and that appellant was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) The act of filing a no-issues brief does not, in and of itself, constitute ineffective assistance of counsel. (See People v. Serrano (2012) 211 Cal.App.4th 496, 500, 503 (Serrano) [attorney satisfies ethical duties by filing no-issues brief and does not need to withdraw as counsel before doing so].) The only contention Walker raises is a claim that counsel misstated the facts of the underlying criminal action in the no-issue brief. Walker does not identify any prejudice that he suffered as a result of counsel's conduct, particularly given this court's determination that the facts in the underlying criminal case are not relevant to the consideration of this appeal (see fn. 3, ante). He has not set forth a basis in his supplemental brief to relieve his current appellate counsel.
Beyond contentions regarding the dismissal of appeal number H050850 and various claims of ineffective assistance of trial and appellate counsel, Walker argues the trial court abused its discretion when it denied the section 1473.6 petition and the motion to reconsider that order. Again, Walker has not identified an arguable issue on appeal based on the record before us. On numerous prior occasions before the filing of these motions, the trial court had rejected Walker's contention that he entered into a plea agreement rather than agreeing to a court trial, and had previously rejected his contention that he was not advised of his obligation to register as a sex offender under section 290. Walker presented no newly discovered evidence as described in the statute in support of the motion for reconsideration. "Petitioner provides absolutely no reason to reconsider this court's prior order denying his section 1473.6 petition. His arguments have been repeatedly raised and rejected for over 20 years. He has pointed to no new evidence, let alone new evidence that would qualify him for relief under section 1473.6." There is no arguable issue arising from the trial court's denial of the motion for reconsideration.
Walker attaches to his supplemental brief various documents as Exhibits A through F, with no indication of their relevancy to this appeal, and without verification that they were before the trial court when it issued the June 2023 order that is the subject of this appeal. He also asks this court to take judicial notice of "First [denial] Ex [8]." Walker did not attach "Exhibit 8" to his brief. These requests are denied.
Finally, Walker argues there was a pending notice of appeal that divested the trial court of jurisdiction to rule on the motion for reconsideration. He is incorrect. Pursuant to Walker's request, this court dismissed appeal number H050850 from the order denying the section 1473.6 petition on April 26, 2023; the remittitur issued the same day. While that appeal might have divested the court of jurisdiction to rule on the motion for reconsideration had it proceeded in due course, jurisdiction was returned to the trial court on April 26, 2023, before it issued the June 2023 order that is the subject of the appeal here. (See Snukal v. Flightways Mfg., Inc. (2000) 23 Cal.4th 754, 774, fn. 5; People v. Dutra (2006) 145 Cal.App.4th 1359, 1366.) Thus, the question of the trial court's jurisdiction is not an arguable issue in this appeal.
In his supplemental brief, Walker asks this court to take judicial notice of "courts order Sept-18-23," which he attached as Exhibit G to his supplemental brief. This order denies a motion filed by Walker after the June 2023 order that is the subject of this appeal. It has no bearing on the trial court's ability to issue the June 2023 order, and does not evidence an arguable issue in this appeal. The request is denied.
Because Walker raises no arguable issue in his supplemental brief, we affirm the trial court's post-conviction order. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.).
III. Disposition
The order denying Walker's motion for reconsideration is affirmed.