Opinion
G055972
02-16-2018
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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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Before O'Leary, P. J., Fybel, J., and Ikola, J. --------
Facts
On January 22, 2018, this court issued a peremptory writ in the first instance that ordered respondent court to vacate its order granting the District Attorney's "Motion for Reconsideration of Sentence" and enter a new and different order denying the motion. Respondent court was 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 of the Penal Code, respondent court was ordered to impose a sentence "no greater" than the sentence imposed by the court on October 17, 2017. The People conceded the petition had merit and the matter was deemed final as to this court forthwith. Accordingly, the clerk of this court issued the remittitur forthwith.
All further statutory references are to the Penal Code.
When the matter returned to court on February 8, 2018, respondent court acknowledged this court's unpublished opinion (Perez v. The Superior Court of Orange County, (Jan. 22, 2018, G055750) [nonpub.opn.]) and took issue with the District Attorney's representation in the informal opposition that suggested respondent court had "either deliberately ignored or made no inquiry of the prosecutor with respect to the victim's desire to be heard." Thereafter, respondent court said it "wanted to [ ] augment the record because that's inaccurate." Contrary to the District Attorney's representation in the informal opposition filed in this court on December 20, 2017, and the reporter's transcript of the hearing conducted on December 1, 2017, respondent court explained it "has an express recollection of inquiring of the prosecutor whether the victim's mother or family wanted to be heard, and the answer to that question was no."
The reporter's transcript for the February 8, 2018 hearing indicates the court took a brief recess and when the matter was back on the record, respondent court noted it "had an off-the-record discussion" during which it had been "brought to the court's attention that the People are going to be asking to continue the sentencing hearing and Mr. Fell [the victim's counsel] also is joining in that request to the extent that the law permits him to do so." (Italics added.)
After petitioner's counsel registered an objection, respondent court granted the District Attorney's motion to continue the resentencing hearing and explained, "To that end, the reason that the request has been made, . . . as we discussed, was the additional information concerning how the initial court indicated and plea proceeded. [¶] . . . [¶] And while you don't know if that would change the opinion of any reviewing court, your desire is to have an opportunity to review whether it would and obviously I am expressing no opinion one way or other. [¶] [Counsel], I recognize the direction of the Court of Appeal and [I am] not in the habit of disregarding direction from the Court of Appeal. However, I can't deny that the augmentation of the record in which the court engaged, Mr. Fell's position, that it might be salient or might have been salient had it been part of the record as part of the initial writ, I don't know if it will be, one way or the other. [¶] But I think, based on the People's desire to make that motion to continue this for sentencing briefly, I think they are entitled to do that. So I could be wrong. It has happened before. But I think I am inclined to allow them the brief continuance for the sentencing hearing." (Italics added.)
The docket in this case recorded the proceeding as follows: "Motion by People to continue sentencing. [¶] Defense object[s.] [¶] Motion granted."
On February 13, 2018, petitioner filed a second petition for writ of mandate/prohibition in this court and a request to stay all proceedings. Petitioner complained that he did not receive notice the District Attorney intended to seek a continuance of the resentencing hearing and also that respondent court ignored the previous order of this court to reinstate his guilty plea and instead continued petitioner's resentencing hearing without good cause.
On February 14, 2018, this court ordered the District Attorney to file informal opposition and cited Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180. On February 15, 2018, the District Attorney filed opposition that contends the petition should be denied because there was good cause to continue the resentencing hearing to February 22, 2018, "in order to provide the victims an opportunity to assess the additional information regarding how the indicated sentence and petitioner's plea proceeded and to review whether that additional information was salient enough to seek further review from this [c]ourt." The District Attorney contends further that even if respondent court erred in continuing the resentencing hearing to February 22, 2018, petitioner is not entitled to immediate sentence because respondent court could correctly continue the resentencing hearing to any judicial day on or before February 21, 2018.
Discussion
Subdivision (b) of section 1050 states, "To continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary . . . ."
Subdivision (d) states that when a party fails to comply with the two day notice requirement in subdivision (b), "the court shall hold a hearing on whether there is good cause for the failure to comply with those requirements. At the conclusion of the hearing, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding. A statement of the finding and a statement of facts proved shall be entered in the minutes. If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted."
"'[W]here a party seeking a continuance fails to comply with the notice requirements, the trial court must make a two-step decision. It must first determine whether there was good cause for failure to comply with those requirements. If there was not good cause, the court must deny the motion. [Citation.] If the court finds there was good cause for failure to comply, it must then decide whether there is good cause for granting a continuance.' [Citation.]" (Mendez v. Superior Court (2008) 162 Cal.App.4th 827, 833.)
In this case there is no entry in the record that the People filed written notice they were seeking a continuance, or made counsel aware before the hearing they intended to seek a continuance of the resentencing hearing. There is also no indication in the record the court conducted a hearing on February 8, to determine good cause for the People's failure to comply with subdivision (b) of section 1050.
However, giving the court and the People the benefit of the doubt, presumably the People were unaware of the grounds for a continuance until the court made its comments at the hearing on February 8, about "the augmentation of the record" that "might have been salient had it been part of the record as part of the initial writ."
On the substance of the motion, subdivision (e) of section 1050 states, "[c]ontinuances shall be granted only upon a showing of good cause." Cases recognize that as a general matter "the trial court has broad discretion to determine whether good cause exists to grant a continuance." (People v. Jenkins (2000) 22 Cal.4th 900, 1038.) "Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (People v. Beames (2007) 40 Cal.4th 907, 920.)
The gist of respondent court's explanation for granting the continuance in this case appears to be that augmenting the record with the additional fact that respondent court had an express recollection that it did in fact inquire about whether the victim's mother wanted to make a statement, and the People either intentionally or accidentally misrepresented to respondent court that the victim's mother did not intend to make a statement, "might have been salient [information] had it been part of the record as part of the initial writ," and therefore the People "are entitled" to continue the resentencing hearing.
Section 1191 requires the court to sentence the defendant "within 20 judicial days after the verdict, finding, or plea of guilty . . . ." Section 1191 allows the court to extend the time by 10 days, but only for the purpose of considering a motion for a new trial, to receive the probation officer's report, if there are reasonable grounds to believe the defendant is insane, or for the defendant to be placed in a diagnostic facility. None of these exceptions apply in this case.
Justice Mosk's concurring opinion in Dix v. Superior Court (1991) 53 Cal.3d 442, explains that subdivision (d) of section 1170 authorizes the trial court to resentence a defendant in the "'same manner' as if the defendant has not previously been sentenced. . . . [¶] The 'same manner' requires resentencing within the statutory period specified in Penal Code section 1191 . . . . Thus the trial court may recall its sentence within 120 days of the date of the commitment, and then must resentence the defendant within [formerly] 28 days thereafter'" unless the defendant waives time for resentencing. (Dix, supra, at pp. at 465-466; Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079.)
Petitioner in this case has not waived his statutory right to be sentenced within 20 judicial days. "A 'judicial day' is defined by statute and is uniform among all the counties of the state. A 'judicial day' is any day except Sundays and holidays enumerated by Government Code section 6700." (People v. Pickens (1981) 124 Cal.App.3d 800, 804.) "20 judicial days" from the date the remittitur issued on January 22, 2018, which is when respondent court had jurisdiction to carry out the order of this court as explained in the opinion filed in case No. G055750, was February 14, 2018.
When jurisdiction returned to respondent court, instead of vacating its order granting the District Attorney's "Motion for Reconsideration of Sentence," entering a new and different order denying the motion, reinstating petitioner's guilty plea entered on October 17, 2017, and resentencing petitioner after any proceedings conducted pursuant to subdivision (d)(1) of section 1170, respondent court granted a request for more time to gather evidence and make additional arguments, essentially a request for a do-over. The request was frivolous and the order granting the motion to continue the resentencing hearing was manifest error.
Once the remittitur issued in this case, respondent court was revested with jurisdiction "but only to carry out the judgment as ordered by the appellate court." (People v. Picklesimer (2010) 48 Cal.4th 330, 338.) Where there is a persistent refusal to obey a peremptory writ of mandate, it is "a well settled rule that the court which issues a writ of mandate retains continuing jurisdiction to make any orders necessary and proper for the complete enforcement of the writ, [Citations]" (Professional Engineers in Cal. Government v. State Personnel Bd. (1980) 114 Cal.App.3d 101, 109) including "impos[ing] a fine not exceeding one thousand dollars . . . order the party to be imprisoned until the writ is obeyed, and [ ] make any orders necessary and proper for the complete enforcement of the writ." (Code Civ., Proc., §1097; King v. Woods (1983) 144 Cal.App.3d 571, 577-578.)
Whether the People or the victim intend to seek review of any order of this court or respondent court, respondent court has a duty to comply with petitioner's statutory right to a timely sentencing hearing. Ignoring its statutory duty to sentence petitioner within 20 judicial days so that the District Attorney could contemplate for two weeks whether to seek review of its own alleged misrepresentation to respondent court is an arbitrary ruling that represents an abuse of the court's discretion. Respondent court's order granting the motion to continue the resentencing hearing was prejudicial error and without any legal basis.
Disposition
For the second time, 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 ordered to reinstate petitioner's guilty plea entered on October 17, 2017, and sentence petitioner forthwith.
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.