Opinion
G055750
01-22-2018
JORGE PEREZ, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Law Offices of Benjamin Arsenian, Benjamin Arsenian and Sierra Nelson for Petitioner. Tony Rackauckas, District Attorney and John R. Maxfield, Deputy District Attorney, for Real Party in Interest. Michael L. Fell for the National Crime Victim Law Institute, Jessica Weber, and Bonnie Masters-Weber as Amici Curiae on behalf of 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17NF0284) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Scott A. Steiner, Judge. Petition granted. Law Offices of Benjamin Arsenian, Benjamin Arsenian and Sierra Nelson for Petitioner. Tony Rackauckas, District Attorney and John R. Maxfield, Deputy District Attorney, for Real Party in Interest. Michael L. Fell for the National Crime Victim Law Institute, Jessica Weber, and Bonnie Masters-Weber as Amici Curiae on behalf of Respondent.
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Before O'Leary, P. J., Fybel, J., and Ikola, J.
Petitioner Jorge Perez filed a petition for writ of mandate/prohibition challenging respondent court's order vacating his plea and sentence and reinstating criminal proceedings. The petition is granted. With respect to the judgment, the District Attorney concedes that once the respondent court pronounced judgment and execution of the sentence commenced by remanding petitioner to the custody of the Department of Corrections and Rehabilitation, the court was without authority to vacate or in any way modify the judgment. With respect to the sentence, the District Attorney also concedes the respondent court may recall the sentence, but any order resentencing petitioner is statutorily limited to a sentence no greater than the initial sentence. Accordingly, we order respondent court to vacate its order granting the District Attorney's Motion for Reconsideration of Sentence, and order the court to enter a new and different order denying the motion. Respondent court is further ordered to reinstate petitioner's guilty plea entered on October 17, 2017, and at the conclusion of any proceedings conducted pursuant to subdivision (d)(1) of section 1170 , the court is ordered to impose a sentence no greater than the sentence imposed by the court on October 17, 2017.
All further statutory references are to the Penal Code unless otherwise specified.
Facts
On January 31, 2017, petitioner was charged in a felony complaint with two counts of driving under the influence of alcohol causing bodily injury, hit and run with injury, and driving on a suspended or revoked license. On February 8, 2017, the court filed a written Victim Impact Statement and said, "And I will also note for the record that submitted to the court was a victim impact statement on this case. It was approximately two pages. It appears to have been from the victim's mother. [¶] The court did review that and did share it with both [counsel]. [¶] That will be filed under seal, since it does reflect the victim's medical condition."
On the court's own motion and for good cause, the court takes judicial notice of the record in Orange County Superior Court case number 17NF0284. (Evid. Code, § 452.)
On September 14, 2017, the parties were before respondent court for a preliminary hearing. According to the District Attorney's Office, they advised the court the offer from the People was a state prison sentence for four years, four months. Petitioner rejected the offer and asked for probation. Respondent court denied the request and gave petitioner an indicated sentence of two years. In exchange for the indicated sentence, petitioner was required to admit all counts and enhancements charged, but the court would strike the great bodily injury enhancement for the purpose of sentencing. On this same date, the District Attorney provided respondent court with both the victim's medical records and the victim impact statement, which said, "As this is being written quickly, I know there are other issues that I may wish to add later."
On October 17, 2017, petitioner pleaded guilty to all counts and the great bodily injury enhancements that had been added by the District Attorney's Office in the first amended complaint, and petitioner was sentenced immediately thereafter. The District Attorney's opposition filed in this court points out, and the reporter's transcript of the hearing confirms, "[t]he trial court did not request nor inquire about the presence of the victim or her mother at the plea," and "rather than order a probation and sentenc[ing] report, the trial court instead chose to impose the indicated sentence that same day." According to the docket, petitioner was sentenced to state prison for the low term of two years. The great bodily injury enhancements alleged were stricken for purposes of sentencing only. Although the docket states the judgment is the result of a "Negotiated Plea," petitioner's plea was made directly to respondent court in exchange for the indicated sentence of two years. After sentencing, the docket states the Sheriff was "ordered to deliver [petitioner] to the custody of the Department of Corrections, Reception Center forthwith."
A week after petitioner was sentenced, the Orange County District Attorney's Office filed a "Request on Behalf of Victim to Make In Court Marsy's Law Statement and Restitution Order for an Amount Due." The following week the District Attorney's Office filed "People's Motion for Reconsideration of Sentence of Defendant Jorge Perez; and Notice Thereof" on the basis that neither the victim nor her relatives had the opportunity to address the court before petitioner was sentenced. Petitioner filed a response to the Motion for Reconsideration and on December 1, 2017, respondent court conducted a hearing at which the court considered an oral statement from the victim's mother that she did not have the opportunity to address the court at the sentencing hearing as required under Marsy's Law.
Although the docket states "Defendant's motion to WITHDRAW GUILTY PLEA to count(s) 1, 2, 3, 4 granted," at the conclusion of the hearing respondent court granted the District Attorney's motion and vacated petitioner's sentence and plea entered on October 17, 2017, and set the matter for a preliminary hearing.
On December 13, 2017, petitioner filed a petition for writ of mandate/prohibition in this court and a request to stay all proceedings. On December 14, 2017, this court issued a stay of the proceedings, cited Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, and ordered the District Attorney to file opposition to the petition challenging respondent court's authority to vacate petitioner's conviction and reinstate proceedings.
On December 20, 2017, the District Attorney filed opposition that concludes respondent court correctly recalled petitioner's sentence in order to provide the victim with an opportunity to be heard at sentencing, but "erred when [respondent court] vacated petitioner's plea." According to the District Attorney, after respondent court conducts a sentencing hearing that provides the victim and her family with the opportunity to address the court, "[t]he trial court should then sentence petitioner to no more than two years in state prison."
After the District Attorney's Office filed their opposition, the court received an application from the National Crime Victim Law Institute and victims Jessica Weber and Bonnie Masters-Weber to appear as amici curiae and file a brief in support of respondent court. After petitioner filed opposition to the application, the court granted the application and filed the amici brief. The amici brief states the rights of the crime victims in this case were violated because they were denied their constitutional and statutory right to be present and heard at the plea and sentencing hearing on October 17, 2017. The amici brief also contends respondent court properly exercised its right to vacate petitioner's plea and sentence based on its inherent authority to withdraw its acceptance of the plea agreement, and respondent court has the authority to recall the sentence and vacate the plea in this case because the plea was "invalid and unlawful." Finally, the amici brief contends that allowing the court to vacate the sentence "complies with both defendant's and the victims' rights." We respectfully disagree with the claims raised in the amici brief, accept the People's concession, and grant the petition for writ of mandate.
Discussion
At the outset, it is worth noting that all parties in this case agree the victims had a constitutional and statutory right to notice and to be heard at the proceedings conducted on October 17, 2017. (Cal. Const., art. I, § 28; Pen. Code, §§ 679.02, 1191.1.)
To the extent the victims were entitled to notice, article I, section 28, subdivision (b)(6) of the California Constitution states the prosecuting agency is to provide notice and inform the victim before any pretrial disposition of the case. Penal Code section 1191.1, charges the probation department with providing the victim with adequate notice of sentencing proceedings.
Based on the reporter's transcript of the hearing on the People's Motion for Reconsideration of Sentence on December 1, 2017, it appears that neither the People nor the probation department provided the victims with notice before the disposition or the sentencing hearing in this case. Despite this acknowledgement by the District Attorney's Office that the victims were not provided with notice, they nonetheless concede the petition has merit because once respondent court pronounced judgment and execution of the sentence commenced forthwith, respondent court is without authority to vacate or in any way modify the judgment. The District Attorney reaches this conclusion because "[i]n a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.]" (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Once the court has rendered judgment and execution of the judgment has commenced, the trial court lacks jurisdiction to vacate or in any manner modify the judgment so as to increase the penalty already imposed. (Id. at 348-349.)
Although the judgment cannot be vacated or modified, section 1170 subdivision (d)(1) allows the trial court to recall the defendant's sentence within the 120 days of the date of the commitment "and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (Pen. Code, § 1170, subd.(d)(1).) (Added emphasis.) Recall of a sentence pursuant to subdivision (d) of section 1170 is "limited to resentencing and [does] not give the court authority to modify the judgment of conviction." (People v. Nelms (2008) 165 Cal.App.4th 1465, 1472; Dix v. Superior Court (1991) 53 Cal.3d 442.)
Contrary to this authority, amici contends respondent court properly exercised its inherent authority to withdraw its acceptance of the plea and vacate petitioner's plea and sentence even after he began the term of imprisonment. We disagree and the cases relied on by amici, People v. Clark (1968) 264 Cal.App.2d 44 (Clark), People v. Thomas (1994) 25 Cal.App.4th 921 (Thomas), and People v. Collins (1996) 45 Cal.App.4th 849 (Collins), fail to support their position.
In Clark, supra, 264 Cal.App.2d 44, the defendants pleaded guilty to forgery, but in response to questions by the court, stated they had not intended to cheat anyone as alleged in the pleading. The trial court vacated their pleas and the reviewing court indicated the judge was justified in interpreting the defendants' statements as "implicit requests to withdraw their pleas of guilty." (Id. at 47.) In response to the defendants' claim the trial court lacked authority to set aside their pleas on its own motion, Clark held, "The continued acceptance by the court of a guilty plea in the face of a defendant's suggestion that in fact he is not guilty runs contrary to all basic conceptions of justice under law." (Id. at 46.)
Amici cites Clark for the proposition that "Every court has inherent power to prevent abuse of its process and to conform its procedures to the fundamentals of due process." (Clark, supra, 264 Cal.App.2d 44, 46.) However, Clark is inapplicable to the facts in this case because amici identifies no abuse of process by the parties that respondent court needed to prevent by vacating the plea, and likewise identifies no conduct by the parties that "runs contrary to all basic conceptions of justice under the law" that could only be rectified by vacating the plea in this case. (Ibid.)
Amici also relies Thomas, supra, 25 Cal.App.4th 921, where the trial court vacated the defendant's negotiated plea after he pleaded guilty, but before the court imposed sentence when it discovered the defendant misrepresented his criminal history. Thomas is inapplicable to the facts of this case for the simple reason that at the time respondent court vacated petitioner's sentence and plea in December 2017, petitioner had already been sentenced and the Sheriff "ordered to deliver [petitioner] to the custody of the Department of Corrections" in October 2017.
In Collins, supra, 45 Cal.App.4th 849, the court determined the People did not receive the benefit of the negotiated disposition based on the defendant's admission that he lied when he testified at a codefendant's court hearing, and thereby breached the terms of the plea agreement. Amici cites to Collins for the proposition that the trial court retains remedial power to entertain motions to vacate a judgment based on the violation of a plea agreement.
We also find Collins inapplicable to the facts in this case. Collins concluded that state law supports "the existence of remedial power to act upon a post-conviction petition brought by either the defendant or the prosecution to enforce the terms of a plea bargain agreement." (Collins, supra, 45 Cal.App.4th at p. 863.) According to Collins, to hold otherwise would "undermine the integrity of the judicial process." (Ibid.) In this case, the disposition was not the result of "plea bargain agreement" between the parties, there is no claim by either party of a breach of the plea that would necessitate the remedial power of respondent court, and requiring respondent court to enforce the indicated sentence it offered petitioner does not undermine the integrity of the judicial process.
In addition to amici's claim that respondent court has inherent authority to vacate the plea, amici also contends respondent court has the authority to recall the sentence because "the plea was invalid and unlawful" as a result of respondent court's failure to comply with Marsy's Law. Amici reasons that "[i]f a plea has been rendered null and void, then it has no legal effect [and] the conviction and sentence premised upon that plea are also necessarily void." Amici concludes by stating if the plea is invalid, "trial courts retain authority to correct invalid or unlawful sentences at any time." Again, we disagree, and note that amici provides no authority that the plea and sentence in this case are invalid, unlawful, or void. The court's failure to comply with the victim's constitutional and statutory rights "does not deprive the trial court of its jurisdiction to proceed." (People v. Superior Court (Thompson) (1984) 154 Cal.App.3d 319, 322.)
In Thompson, the People and the victim filed a writ petition complaining the defendant's grant of probation was unlawful because the victim had not been notified of the sentencing date as required in section 28, article I of the California Constitution and section 1191.1. Thompson denied the petitions and held, "The failure of the probation officer to comply with that officer's duty to notify the crime victim of the probation and sentencing hearing, and the resultant absence of the victim at such hearing, does not deprive the trial court of its jurisdiction to proceed." (Thompson, supra, 154 Cal.App.3d at pg. 322.) Thompson held further that the court had no authority to afford relief because there were no procedures in the constitutional provision or statute to enforce the duty of notification or remedies for the failure to do so.
Amici takes issue with Thompson because article I, section 28 was amended in 2008, and now states the rights enumerated in subdivision (b) in paragraphs (1) through (17) are "personally held and enforceable rights." (Cal. Const., art. I, § 28, subd. (a)(3).)
We cite Thompson for its holding that the lack of notice did not deprive the court of jurisdiction to accept petitioner's guilty plea and impose sentence, and note the amendment to section 28 in 2008, enacted after Thompson was published in 1984, still fails to provide for procedures to enforce the duty of notification and remedies for noncompliance.
Amici relies on People v. Massie (1998) 19 Cal.4th 550, as an example of an invalid plea where the court lacked jurisdiction to accept the plea. Again, we find the case has no application to the facts in this case. In Massie the defendant pleaded guilty against the advice of counsel in a capital case. The plea in Massie was statutorily void because section 1018 expressly prohibits a plea under these circumstances and states, "No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant's counsel." (Pen. Code, § 1018.) In this case, amici identifies no constitutional provision, statute, or case that respondent court lacked fundamental jurisdiction to accept petitioner's plea and then sentence petitioner on October 17, 2017.
Amici urges the court to find that it was error for respondent court to impose sentence without considering the statements of the victims because section 1191.1 states, "The court in imposing sentence shall consider the statements of victims . . . ." (Pen. Code, § 1191.1.) But any error attributable to respondent court for not considering the victim's statement is not synonymous with the trial court lacking fundamental jurisdiction to accept a defendant's plea and render judgment. If amici's position were correct, it would mean that all current and prior convictions since section 1191.1 took effect in 1982, in which the victim was not given notice or an opportunity to address the court at sentencing, were invalid and void.
Finally, amici contends that allowing the court to vacate the sentence "complies with both defendant's and the victims' rights." We fail to see how vacating the sentence in this case complies with "both" the defendant's and the victims' rights when subdivision (d)(1) of section 1170 specifically states that any "new sentence, if any, is no greater than the initial sentence." (Pen. Code, § 1170, subd.(d)(1).) (Added emphasis.)
Disposition
The petition for writ of mandate/prohibition is granted. Respondent court is ordered to vacate its order granting the District Attorney's "Motion for Reconsideration of Sentence" on December 1, 2017, and enter a new and different order denying the motion. Respondent court is further ordered to reinstate petitioner's guilty plea entered on October 17, 2017, and at the conclusion of any proceedings conducted pursuant to subdivision (d)(1) of section 1170, the court is ordered to impose a sentence "no greater" than the sentence imposed by the court on October 17, 2017.
The stay previously issued by this court is dissolved.
In the interest of justice, the opinion in this matter is deemed final as to this court forthwith and the clerk is directed to issue the remittitur forthwith.