Opinion
D073747
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES LAMONT BAGSBY, Defendant and Appellant.
Richard Power, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB056642) APPEAL from an order of the Superior Court of San Bernardino County, Gregory S. Tavill, Judge. Appeal dismissed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
James Lamont Bagsby sought to appeal an order denying his motion to strike his firearm enhancements, filed in conjunction with his traverse in a habeas corpus proceeding then pending before the superior court. Because there is no appealable order, we dismiss the purported appeal.
FACTUAL AND PROCEDURAL BACKGROUND
We summarized the facts related to Bagsby's conviction in People v. Bagsby (Sept. 20, 2011, D058197) [nonpub. opn.]). In 2006, Bagsby, then 15 years old, shot at a group of youths playing basketball, killing one and injuring another. He was convicted in 2010 of second degree murder with the use of a firearm (Pen. Code, §§ 187, subd. (a), 12022.53, former subds. (c) & (d)) and ten counts of assault with a semiautomatic firearm (Pen. Code, §§ 245, subd. (d), 12022.5, subd. (a)). In his appeal, he contended his cumulative term of 107 years to life constituted cruel and/or unusual punishment in violation of the federal and state constitutions. We rejected that challenge.
After our decision, the United States Supreme Court decided in Miller v. Alabama (2012) 567 U.S. 460 (Miller) that the Eighth Amendment prohibits a mandatory sentence of life without parole for a juvenile convicted of homicide. Miller applies to sentences that are the "functional equivalent" of a life without parole sentence. (People v. Franklin (2016) 63 Cal.4th 261, 276 (Franklin).)
Legislative amendments to align juvenile sentencing with Supreme Court decisions have mooted a Miller challenge for a juvenile offender in this state. (Franklin, supra, 63 Cal.4th at p. 268.) Penal Code sections 3051 and 4801 allow defendants like Bagsby to seek parole after 25 years of imprisonment but do not invalidate the sentence imposed. (See Franklin, at p. 268.) Pursuant to Franklin, however, a defendant sentenced pre-Miller is entitled to limited remand to "make a record of mitigating evidence tied to his youth" for purposes of a later youth offender parole hearing; relevant evidence may include a defendant's "cognitive ability, character, and social and family background at the time of the offense." (Id. at pp. 268-269, 284.)
In 2016, Bagsby filed a petition for writ of habeas corpus. The trial court issued an order to show cause in January 2017 to address whether he was entitled to remand under Franklin, supra, 63 Cal.4th 261 to make a record of youth-related mitigating factors relevant to his eventual youth offender parole hearing. The People filed a return, contending the evidence in mitigation presented at the sentencing hearing satisfied Franklin. Bagsby's counsel disagreed in his traverse, filed in April 2017.
On May 3, 2017, the court granted Bagsby's habeas corpus petition and ordered a Franklin hearing. The court later set a second hearing to permit Bagsby to make an offer of proof. Bagsby filed a sentencing brief in October 2017, attaching as exhibits letters from family and childhood friends and various records from the juvenile court file. The court set the Franklin hearing for January 5, 2018 and allowed the People to submit any responsive documents.
On November 30, 2017, Bagsby filed a "Motion to Strike Arming Enhancements" from his sentence based on the passage of Senate Bill No. 620 (Stats. 2017, ch. 682). The motion purported to be submitted as a second "traverse" to the People's return on the habeas corpus petition. Bagsby argued that effective January 1, 2018, Senate Bill 620 permitted the court to strike or dismiss firearm enhancements at the time of sentencing or resentencing. Citing In re Estrada (1965) 63 Cal.2d 740 (Estrada), he claimed these amendments had retroactive application.
The trial court continued the evidentiary hearing under Franklin to allow the People to respond to Bagsby's motion. In their opposition, the People noted that the judgment was long final and Estrada had no application.
On March 16, 2018, the court held the evidentiary Franklin hearing and considered Bagsby's motion to strike. It correctly noted that a hearing under Franklin was not a resentencing. (See Franklin, supra, 63 Cal.4th at p. 269 [remanding so defendant could make an adequate record for a later parole hearing but noting his "sentences remain valid"].) Defense counsel countered that the court could nevertheless consider the sentence "by virtue of the Franklin hearing that was afforded to Mr. Bagsby." Conceding Franklin did not give rise to "a full-blown resentencing," he argued the matter had been reopened, which allowed consideration of the Senate Bill 620 issue.
The court denied the motion, agreeing with the People that Estrada did not apply. It ordered the Franklin materials submitted by defense counsel to be transmitted to the Department of Corrections for his eventual youth offender parole hearing.
Bagsby filed a notice of appeal from the court's order denying his motion for resentencing at the Franklin hearing.
DISCUSSION
Although styled a "traverse" in the pending habeas proceeding, Bagsby's request for resentencing pursuant to Senate Bill 620 was actually a new petition for writ of habeas corpus. (See Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 77 [" '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 remedy sought in the pleading' "]; Neal v. State (1960) 55 Cal.2d 11, 17 [writ of habeas corpus will issue "to review an invalid sentence"].) Senate Bill 620 has nothing to do with the Franklin issues that were the subject of Bagsby's original habeas petition. As such, the court's denial of what was, in effect, a second habeas petition is not appealable. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7 ["Because no appeal lies from the denial of a petition for writ of habeas corpus, a prisoner whose petition has been denied by the superior court can obtain review of his claims only by the filing of a new petition in the Court of Appeal."]; People v. Garrett (1998) 67 Cal.App.4th 1419, 1421-1422 [denial of petition for writ of habeas corpus is not an appealable order]; People v. Gallardo (2000) 77 Cal.App.4th 971, 983 ["Although the People may appeal the granting of a writ of habeas corpus, the detainee has no right to appeal its denial and must instead file a new habeas corpus petition in the reviewing court."]; see Pen. Code, § 1237 [appealability].) Because there is no appealable order, this appeal must be dismissed.
Even if the order were appealable, we would be entitled to dismiss the appeal as abandoned. This case has been processed pursuant to the procedure outlined in People v. Wende (1979) 25 Cal.3d 436. Counsel was appointed to represent Bagsby on appeal. He filed a brief indicating he found no arguable issues (Anders v. California (1967) 386 U.S. 738) and requested the court to conduct an independent Wende review. Use of Wende was erroneous in the current appeal, as the procedure "applies only to a defendant's first appeal as of right." (People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Serrano (2012) 211 Cal.App.4th 496, 500 ["due process does not require Anders/Wende review other than in the first appeal of right from a criminal conviction"].) Nevertheless, we informed Bagsby of his right to file a supplemental brief, and he has not filed anything with this court. We would be entitled on these facts to dismiss the appeal as abandoned, had it been taken from an appealable order. (Serrano, at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
DATO, J. WE CONCUR: HALLER, Acting P. J. GUERRERO, J.