Opinion
C095433
07-21-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY HALL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 97F03789)
OPINION ON TRANSFER
RENNER, J.
Defendant Anthony Hall appeals from the trial court's denial of his second petition for recall of sentence under Proposition 36, the Three Strikes Reform Act of 2012. (Pen. Code, § 1170.126.) His appointed counsel asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal.
Undesignated statutory references are to the Penal Code.
(People v. Wende (1979) 25 Cal.3d 436.)
On August 17, 2022, prior to our Supreme Court's decision in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), we dismissed the appeal as abandoned. Our Supreme Court thereafter granted review and held the case pending its decision in Delgadillo. On March 29, 2023, the matter was transferred back to this court with directions to vacate our previous decision and reconsider whether to exercise our discretion to conduct an independent review of the record or provide any other relief in light of Delgadillo.
On April 5, 2023, we vacated our decision dismissing the appeal and notified defendant, among other things, that he had 30 days to file a supplemental brief or letter raising any argument he wanted this court to consider, and if this court did not receive such a letter or brief within that 30-day period, we may dismiss the appeal as abandoned. At defendant's request, we extended this 30-day period another 31 days. We received defendant's supplemental brief on June 5, 2023.
In the supplemental brief, defendant primarily argues that we must reverse the denial of his petition and remand the matter to allow the trial court to apply "Proposition 47's definition of 'unreasonable risk of danger to public safety.'" We disagree and affirm.
I. BACKGROUND
In 1998, defendant was convicted of possession of a dirk or dagger while confined in a penal institution (§ 4502) and sentenced to an indeterminate term of 25 years to life under California's "Three Strikes" law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
"Proposition 36 was passed by the electorate on November 6, 2012, and . . . went into effect the following day. [Citations.] [It] prospectively reduced the punishment previously proscribed for certain defendants convicted of a third strike offense. Additionally, . . . it created a 'retroactive relief procedure' for certain inmates serving an indeterminate, third strike sentence under the former Three Strikes law. [Citations.] [¶]
The . . . resentencing procedure allows an inmate to file 'a petition for a recall of sentence' within two years of Proposition 36's effective date, 'or at a later date upon a showing of good cause.' (§ 1170.126, subd. (b).)" (People v. Valencia (2021) 64 Cal.App.5th 641, 647.)
Defendant's first such petition was denied by the trial court in December 2014. That decision is not at issue in this appeal. Almost seven years later, in October 2021, defendant filed a second petition for recall of sentence and resentencing pursuant to section 1170.126.
In November 2021, the trial court denied the petition, ruling (a) it was untimely, "having been filed more than two years after the effective date of . . . section 1170.126," and (b) "[n]othing [in the] petition provide[d] good cause for the delay."
Defendant timely appealed.
II. DISCUSSION
Before addressing the arguments made in defendant's supplemental brief, we note that "[a]n inmate is eligible for resentencing [under Proposition 36] only if (1) he or she is serving an indeterminate 'third strike' sentence for a felony that is not considered serious or violent, as defined by law; (2) the third strike sentence was not imposed for one of certain enumerated, disqualifying offenses; and (3) the inmate had no prior conviction for any of certain other enumerated, disqualifying offenses. (§ 1170.126, subd. (e).) If the inmate meets the eligibility requirements for resentencing, he or she will be resentenced by the trial court, unless the court determines, in its discretion, 'that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subd. (f).)" (People v. Valencia, supra, 64 Cal.App.5th at p. 647.) However, "[t]he time to petition for recall of sentence pursuant to Proposition 36 expired in November 2014. (§ 1170.126, subd. (b).) Since that time, an inmate may bring a recall petition only upon a showing of good cause for the delay." (Ibid.)
As mentioned, the trial court denied defendant's petition as untimely and unsupported by a showing of good cause for the delay. "As a general matter[,] appellate courts have recognized a trial court 'has broad discretion to determine whether good cause exists.'" (People v. Drew (2017) 16 Cal.App.5th 253, 257.) We review this determination for abuse of discretion. (Ibid.)
Nothing in defendant's supplemental brief supports a conclusion that the trial court abused its discretion in determining his petition for recall of sentence did not demonstrate good cause for the delay. Indeed, the only portion of the brief that can be said to relate to the good cause determination begins by providing the applicable standard for proving a claim of ineffective assistance of counsel. Defendant then argues that his attorney provided constitutionally deficient assistance by failing to respond when the trial court provided "an opportunity to respond regarding the petition" and "also failed to inform [defendant] she was withdrawing from representation as his attorney." Defendant finally notes that "[d]uring the time of [his] petition[,] . . . he was in solitary confinement for his mental and physical health issues."
First, defendant's placement in solitary confinement, apparently while the second petition was pending before the trial court, does not explain why it took almost seven years to file the second petition. Second, while a criminal defendant is entitled to the assistance of counsel during a sentencing hearing (Gardner v. Florida (1977) 430 U.S. 349, 358), section 1170.126 provides a "right to a resentencing hearing only upon a showing that [a defendant] is eligible" and "not a right to a hearing on the issue of eligibility." (People v. Oehmigen (2014) 232 Cal.App.4th 1, 6, italics omitted; see also People v. Bradford (2014) 227 Cal.App.4th 1322, 1337.) Thus, defendant has not demonstrated that he was constitutionally entitled to counsel prior to a determination that he was in fact eligible for resentencing. That determination was not made, however, because the trial court determined the petition was untimely and no good cause was shown. Ultimately, defendant's ineffective assistance argument misses the pivotal issue on appeal, whether the trial court abused its discretion in determining no good cause showing was made. As to that issue, defendant has not carried his appellate burden of demonstrating an abuse of discretion.
While the foregoing is sufficient to dispose of this appeal, we briefly address defendant's remaining arguments, which comprise the bulk of his supplemental brief. Defendant argues Proposition 47, the Safe Neighborhoods and Schools Act, "dramatically limits the dangerousness exception to resentencing" by defining" 'unreasonable risk of danger to public safety'" to mean "an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of section 667[,] . . . [¶] . . . sometimes called 'super strikes.'" This limitation, defendant says, applies not only to resentencing proceedings under Proposition 47, but also to such proceedings under Proposition 36, and "[t]here is not a scintilla of evidence-much less substantial evidence-that [defendant] poses 'an unreasonable risk of danger to public safety' under [Proposition] 47's clarification of that term."
This line of argument fails for at least two reasons. First, in denying the petition at issue in this appeal, the trial court did not reach the question of whether defendant posed an unreasonable risk of danger to public safety. Instead, as stated previously, the trial court properly denied the petition as untimely and unsupported by a showing of good cause for the delay. Second, and perhaps more importantly, this argument is foreclosed by our Supreme Court's decision in People v. Valencia (2017) 3 Cal.5th 347, holding Proposition 47's "definition of an 'unreasonable risk of danger to public safety' [applies] only to the resentencing proceedings that are authorized under Proposition 47." (Id. at p. 375.) Moreover, because Proposition 47's definition of that statutory phrase does not apply to defendant's Proposition 36 petition, we need not address his additional argument that the definition applies retroactively to any pending appeal of a section 1170.126 denial.
Finally, defendant asserts a claim of instructional error. This, however, is not an appeal from the underlying judgment. Defendant had an opportunity to raise this issue during that appeal but did not. (See People v. Hall (Nov. 23, 1999, C030941) [nonpub. opn.].) He may not raise it now.
III. DISPOSITION
The order denying defendant's petition for resentencing under section 1170.126 is affirmed.
We concur: ROBIE, Acting P. J. MAURO, J.