Opinion
A163245
02-08-2023
THE PEOPLE, Plaintiff and Respondent, v. JIDEOFOR AJAELO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 148769B)
PETROU, J.
In 2018 and 2019, defendant Jideofor Ajaelo, in propria persona, filed petitions for resentencing of his first degree murder conviction under Penal Code former section 1170.95, now section 1172.6. The superior court summarily denied each petition, and Ajaelo filed no notices of appeal.
All further undesignated statutory references are to the Penal Code.
Throughout this opinion, we cite to section 1172.6, formerly section 1170.95, for ease of reference.
In 2021, Ajaelo, in propria persona, filed his third section 1172.6 petition. In its June 23, 2021 order, the superior court construed the third petition as a motion for reconsideration and denied the request as it contained factual allegations identical to the prior two petitions and failed to set forth any new law.
Because we conclude the June 23, 2021 order is not an order that affects the substantial rights of Ajaelo within the meaning of section 1237, subdivision (b), we lack jurisdiction to review it. Accordingly, we dismiss the appeal.
Because we are dismissing the appeal, Ajaelo's request for judicial notice is denied as moot.
Factual and Procedural Background
On January 31, 2007, a jury found Ajaelo guilty of one count of first degree murder (§ 187), together with a true finding on a drive-by shooting special circumstance allegation (§ 190.2, subd. (a)(21)), and three counts of attempted murder, together with true findings on allegations of willfulness, premeditation, and deliberation. (§§ 187, 664). The jury also found true allegations that a principal was armed with a firearm (§ 12022, subd. (a)(1)) as to all counts. Ajaelo was sentenced to an aggregate term of 25 years to life without the possibility of parole.
In a separate order and pursuant to the parties' joint stipulation, we granted Ajaelo's petition for a writ of habeas corpus, vacated his convictions for attempted murder, and remanded the matter to the superior court for further proceedings. (In re Ajaelo (dec. December 21, 2022, A164664).)
On December 27, 2018, Ajaelo, in propria persona, filed his first section 1172.6 petition for resentencing of the first degree murder conviction and requested appointment of counsel. Without appointing counsel, the superior court summarily denied the petition on February 6, 2019. The court found Ajaelo was statutorily ineligible for section 1172.6 relief because, among other things, the jury's true finding on the drive-by shooting special circumstance allegation was sufficient for the court to conclude beyond a reasonable doubt that the first degree murder verdict was based on a legally valid theory of murder under the changes to sections 188 and 189 made by Senate Bill 1437. Ajaelo did not file a notice of appeal.
Effective January 1, 2019, the Legislature enacted former section 1170.95 with the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437; Stats. 2018, ch. 1015, § 4), which barred a conviction for murder under the natural and probable consequences theory, limited the scope of the felony-murder rule, and created a procedure for retroactive relief. (People v. Delgadillo (2022) 14 Cal.5th 216, 223 (Delgadillo).) Effective January 1, 2022, the Legislature amended former section 1170.95 with the passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775; Stats. 2021, ch. 551, § 2). Senate Bill 775 reaffirmed that beyond a reasonable doubt is the appropriate burden of proof for a resentencing hearing and expanded the statute to apply to persons convicted of attempted murder or manslaughter. (Sen. Bill 775, § 1, subds. (a)-(d).) (Delgadillo, supra, 14 Cal.5th at p. 223, fn. 3.) Effective June 30, 2022, due to the passage of Assembly Bill No. 200, former section 1170.95 was renumbered to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) (Delgadillo, supra, 14 Cal.5th at p. 223, fn. 3.)
More than a year later, on March 30, 2020, Ajaelo, in propria persona, filed his second section 1172.6 petition and requested appointment of counsel. Without appointing counsel, the superior court again summarily denied the second petition "for the same reasons" as stated in its February 6, 2019 order. The court explained that the second petition was "identical" to the first petition and provided "no further bases or authority upon which this court may reconsider its prior order." Again, Ajaelo did not file a notice of appeal.
More than a year later, on April 26, 2021, Ajaelo, in propria persona, filed his third section 1172.6 petition and requested appointment of counsel. Without appointing counsel, the superior court issued an order on June 23, 2021: "Because the present section [1172.6] resentencing petition appears identical to the prior, previously denied resentencing petitions, which defendant fails to address or disclose, the Court construes the present submission as a request for reconsideration." The court went on to deny reconsideration as the pleading provided "no authority allowing reconsideration or permitting" renewal of the "prior, previously denied section [1172.6] petitions."
Ajaelo filed a timely notice of appeal in which he identified the June 23, 2021 order as a ruling on a section 1172.6 petition for resentencing.
Discussion
Ajaelo's sole argument on appeal is that the superior court erred in summarily denying his third section 1172.6 petition without appointing counsel. Based upon our Supreme Court's decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which was filed after the June 23, 2021 order, the parties agree that the court is required to appoint counsel when requested to do so by a defendant who has filed a facially sufficient section 1172.6 petition. The parties disagree as to whether any failure to appoint counsel constituted prejudicial error.
Before we may address the parties' substantive arguments, we first must determine whether we have jurisdiction to do so. (People v. Caldwell (2018) 29 Cal.App.5th 180, 189; see Baker v. Castaldi (2015) 235 Cal.App.4th 218, 222 [" '[i]t is the duty of an Appellate Court on its own motion to dismiss an appeal from an order which is not appealable' "].) As we explain below, the trial court properly construed Ajaelo's third section 1172.6 petition as a motion for reconsideration. And, because the June 23, 2021 order does not affect Ajaelo's substantial rights within the meaning of section 1237, subdivision (b), it is not appealable. We therefore are without jurisdiction to review the order.
A. The Trial Court Properly Construed the Third Petition as a Motion for Reconsideration
We initially conclude the superior court acted well within its discretion in construing the third section 1172.6 petition as a motion for reconsideration as the pleading contained no new factual allegations or new legal authority calling into question the rulings on the previous petitions. As the court explained: The "label given a petition, action, or other pleading is not determinative; rather the true nature of a petition or cause of action is based on the facts alleged and the remedy sought in that pleading." (Escamilla v. Department of Corrections &Rehabilitation (2006) 141 Cal.App.4th 498, 511; see People v. Picklesimer (2010) 48 Cal.4th 330, 340, quoting Escamilla, supra, at p. 511.) "The proposition that a trial court may construe a motion bearing one label as a different type of motion is one that has existed for many decades. 'The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.' [Citation.] Neither the Legislature, nor the California Supreme Court, nor any Court of Appeal has ever challenged that notion." (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) "The principle that a trial court may consider a motion regardless of the label placed on it by a party is consistent with the court's inherent authority to manage and control its docket." (Ibid.) We see no merit to Ajaelo's argument that the superior court erred in construing his third section 1172.6 petition as a motion for reconsideration because when he filed the third petition "there were no findings on litigated issues for the court to reconsider." (Italics in original.) The record reflects the court's summary denial of the first section 1172.6 petition resolved all the issues raised by that pleading including the court's denial of Ajaelo's request for the appointment of counsel.
We also do not find persuasive the parties' reliance on People v. Farfan (2021) 71 Cal.App.5th 942 (Farfan), for the argument that the superior court erred in considering the third petition a motion for reconsideration because a defendant is not precluded from filing a renewed or successive 1172.6 petition. In Farfan, the appellate court upheld the defendant's filing of a successive section 1172.6 petition that rested on new legal authority that challenged the basis for the superior court's summary denial of a previous petition. (Farfan, supra, 71 Cal.App.5th at p. 951.) In contrast, Ajaelo's third section 1172.6 petition, which contained identical factual allegations and no new law, did not present new issues requiring further review by the superior court.
B. The Order Denying the Request for Reconsideration is Not Subject to Appeal
It is undisputed that a defendant may appeal an order denying a section 1172.6 petition. (People v. Gentile (2020) 10 Cal.5th 830, 858.) However, the June 23, 2021 order is not such an order as the superior court did not consider or address the merits of the third petition. Instead, it construed the pleading as a request for reconsideration and denied reconsideration in the absence of new facts or law. Therefore, we are tasked with deciding whether we have jurisdiction to review the order denying reconsideration. According to Ajaelo, the June 23, 2021 order is appealable under section 1237, subdivision (b), which allows a defendant to appeal "[f]rom any order made after judgment, affecting the substantial rights of the party." However, in determining jurisdiction to entertain an appeal from an order made after judgment under section 1237, subdivision (b), an appellate court must decide as an exercise of its discretion whether the order is one which affects a defendant's substantial rights. (People v. Banks (1959) 53 Cal.2d 370, 379-381, fn. 5 (Banks).)
We asked the parties to submit additional briefing regarding whether the superior court properly construed the third section 1172.6 petition as a motion for reconsideration and, if so, whether the June 23, 2021 order denying reconsideration is an appealable order. The parties have submitted letter briefs, which we have considered on this appeal.
Despite the broad scope of section 1237, subdivision (b), the courts have applied a "well established qualification." (People v. Thomas (1959) 52 Cal.2d 521, 527 (Thomas).) Namely that "[a]n order made after judgment is not appealable where the motion or application merely asks the court to repeat or overrule a former ruling on the same facts." (People v. Rick (1952) 112 Cal.App.2d 410, 412; see People v. Palmer (1942) 49 Cal.App.2d 579, 580 [it is "well established that an order made after judgment is not appealable where the motion or application merely asks the court to repeat or overrule the former ruling on the same facts"].) To hold otherwise," 'would . . . virtually allow [ ] two appeals from the same ruling, and would, in some cases, have the effect of extending the time for appealing contrary to the effect of the statute.'" (Ibid.)
The record reflects that Ajaelo had "an adequate remedy" to challenge the superior court's failure to appoint him counsel by filing an appeal from either the order denying the first section 1172.6 petition or the order denying the second 1172.6 petition. (Thomas, supra, 52 Cal.2d at p. 527.) Had an appeal been filed from either denial, Ajaelo could have raised the exact same issues he now seeks to raise on this appeal. (People v. Flohr (1939) 30 Cal.App.2d 576, 578.) Instead, Ajaelo chose to file a third section 1172.6 petition, based on the same facts and law as presented in his previous petitions, and then appeal only from the June 23, 2021 order. And, as we have concluded, the superior court properly construed the third section 1172.6 petition as a motion for reconsideration as it merely asked the court to repeat or overrule the denial of the earlier petitions. Consequently, were we to allow an appeal from the June 23, 2021 order, it would have the effect of unduly extending Ajaelo's time to appeal from the court's denials of his previous section 1172.6 petitions. Because we see no reason to allow this late review, we exercise our discretion to dismiss the appeal of the June 23, 2021 order as we do not find the order affects Ajaelo's substantial rights within the meaning of section 1237, subdivision (b), as that provision has been interpreted by the courts.
We see no significance to Ajaelo's conclusory argument that the superior court did not inform him of his right to appeal from the denial of his previous section 1172.6 petitions. California Rules of Court rule 4.305 mandates when a court must give notice of the right to appeal including "after . . . making an order deemed to be a final judgment made on conviction after trial." An order denying a section 1172.6 petition is not an order deemed to be a final judgment made on conviction after trial, and therefore the superior court is not required to give notice of the right to appeal that type of order.
Concededly, the courts have made various exceptions to the general rule of nonappealability, such as when the record on appeal would not have shown the error (see People v. Gallardo (2000) 77 Cal.App.4th 971, 981), when the order under review is attacked as void (see Thomas, supra, 52 Cal.2d at pp. 528-529), or when the appeal presents a question of the constitutionality or interpretation of a statute, that is of concern to a number of persons other than defendant, and an authoritative decision would clarify the law in the court's discretion (see Banks, supra, 53 Cal.2d at pp. 379-381, fn. 5). Here, however, we are not presented with any such questions and a review of the June 23, 2021 order would not result in any decision that would be of concern to other defendants or would resolve any conflict in the interpretation of section 1172.6. In other words, there are no exceptional circumstances that warrant the exercise of our discretion to review the June 23, 2021 order.
We also have the discretion to treat a purported appeal from a nonappealable order as an extraordinary writ petition. (Banks, supra, 53 Cal.2d at pp. 379-381, fn. 5.) We exercise that power only in unusual circumstances which we do not find to be present here. (Williams v. Impax Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1071-1072 ["more is required than just a colorable dispute about an order's appealability to create unusual circumstances justifying the exercise of our discretion to treat an appeal as a writ petition"].)
C. Conclusion
For the above reasons, we shall dismiss the appeal for lack of jurisdiction to review the June 23, 2021 order. This dismissal does not leave Ajaelo without a remedy as section 1172.6 does not expressly preclude successive petitions and a successive petition may be filed premised on new facts and/or changes in the law. (Farfan, supra, 71 Cal.App.5th at p. 951.)
Because we are dismissing the appeal without deciding its merits, Ajaelo does not have a right to oral argument, and we consider it unnecessary to our procedural ruling. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1254; Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871.) Accordingly, we shall direct the clerk of this court to remove the case from the February 28, 2023 oral argument calendar.
Disposition
The appeal of the June 23, 2021 order is dismissed. The clerk of this court is directed to remove the case from the February 28, 2023 oral argument calendar.
WE CONCUR: Fujisaki, Acting P.J. Rodriguez, J.