Opinion
D070609
10-23-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO CHAIDEZ, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD181666) APPEAL from orders of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Roberto Chaidez appeals from orders denying his requests for resentencing under Proposition 36 (Pen. Code, § 1170.126) and Proposition 47 (§ 1170.18, subd. (a)).
Further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006 a jury convicted Roberto Chaidez of two counts of residential burglary of an inhabited dwelling (§§ 459, 460); receiving stolen property (§ 496); and unlawfully taking and driving a motor vehicle (Veh. Code, § 10851). In bifurcated proceedings, the jury found true special allegations that Chaidez had incurred two prior felony convictions (§§ 667, subd. (a), 668, 1192.7, subd. (c)); two strike priors (§§ 667, subd. (b)-(i), 668, 1170.12); and three prior prison terms (§§ 667.5, subd. (b), 668). The court sentenced Chaidez to 60 years to life. (§ 654.) (People v. Chaidez (Sept. 10, 2008, D049656) [nonpub. opn.] (Chaidez).)
On December 19, 2014, Chaidez filed a petition for recall of sentencing under Proposition 47. (§ 1170.18, subd. (a).) On January 21, 2016, the trial court denied the petition, stating "[c]onvictions for residential burglary are not eligible for resentencing."
Chaidez filed a petition for resentencing under Proposition 36. (§ 1170.126.) On April 6, 2016, the trial court denied the petition on the ground it was untimely and did not state good cause for the late filing. On May 4, 2016, Chaidez filed a timely notice of appeal of the petition for resentencing under Proposition 36.
On April 26, 2016, prior to filing his notice of appeal, Chaidez filed a request for reconsideration/petition for writ of error coram nobis in trial court for reconsideration of the orders denying his petitions for resentencing under Proposition 47 and Proposition 36.
On July 5, 2016, Chaidez filed a notice of appeal from the January 21 order denying his petition for resentencing under Proposition 47. This appeal was filed under the same case number in this court as the notice of appeal from the denial of resentencing under Proposition 36.
Appointed appellate counsel filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal, and invited this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel did not identify any possible, but not arguable, issues.
We granted Chaidez permission to file a brief on his own behalf, which he did. In a difficult-to-decipher brief, Chaidez appears to reargue the facts underlying his convictions on the substantive offenses. Those issues have been reviewed by this court in Chaidez, which affirmed the judgment. (Chaidez, at p. 10.) In addition, Chaidez contends his petition for resentencing under Proposition 36 was timely because he was in solitary lockup and did not know he could apply for resentencing until he was released to the general prison population.
On April 21, 2017, this court ordered counsel to submit further briefing on (1) whether the court erred when it found there was not good cause for the late filing of the motion for resentencing under Proposition 36 and denied the petition on that ground, and (2) whether the court erred when it denied the motion for resentencing under Proposition 47 without considering its application to Chaidez's convictions under Penal Code section 496 and Vehicle Code section 10851.
DISCUSSION
A. Timeliness of Appeal from Denial of Resentencing Under Proposition 47
The People state the appeal from the order denying resentencing under Proposition 47 is untimely and should be dismissed. An appeal in a criminal case must be filed within 60 days after the rendition of judgment. (Cal. Rules of Court, rule 8.308(a).) "An untimely notice of appeal is an 'absolute bar' to appellate jurisdiction." (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.)
Further rule references are to the California Rules of Court. --------
Chaidez states he was not served with the January 21, 2016 order until May 27, 2016, when he received a certified copy of the original order, and therefore his notice of appeal was timely filed. Because the issue concerns this court's jurisdiction, we reviewed the trial court record. The record does not contain an affidavit of proof of service indicating the January 21 order was served on Chaidez when the order was filed or that he had any notice of entry of judgment prior to May 27, 2016.
Although rule 8.308 does not contain an express provision for relief from default, the lack of such provision cannot deprive the appellate courts of their inherent duty to protect constitutional rights. (In re Arthur N. (1974) 36 Cal.App.3d 935, 941.) Notice is a key element of due process. (Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 706; cf. Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314 [notice must be of such nature as reasonably to convey the required information, and must afford a reasonable time for those interested to make their appearance].) In view of our obligation to protect the defendant's constitutional rights, we therefore deem the notice of appeal timely filed.
B. Proposition 47
Receiving stolen property (Pen. Code, § 496) and unlawfully taking and driving a motor vehicle (Veh. Code, § 10851) may be eligible for resentencing if the value of the property taken is less than $950. (People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v. Van Orden (2017) 9 Cal.App.5th 1277, 1283.) Although it appears the trial court did not consider these convictions in denying Chaidez's petition for resentencing under Proposition 47, Chaidez concedes the petition did not allege the property taken was worth less than $950 and did not state facts sufficient to make the case for relief. (People v. Johnson (2016) 1 Cal.App.5th 953, 961; People v. Sherow (2015) 239 Cal.App.4th 875, 879.) In view of defendant's concession, we affirm the order of January 21, 2016, denying the petition for resentencing under Proposition 47.
C. Proposition 36
Chaidez concedes the trial court did not abuse its discretion in denying his petitions under Proposition 36. He states, and the record shows, the petition for resentencing under Proposition 36 did not set forth the reasons for the delay in filing. (See generally People v. Drew (Oct. 12, 2017, D071334) ___Cal.App.5th ___ .) In view of defendant's concession, we affirm the order of April 6, 2016, denying the petition for resentencing. Chaidez has been represented by competent counsel on appeal.
DISPOSITION
The orders of January 21, 2016 and April 6, 2016 are affirmed.
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.