Opinion
E083257
04-05-2024
THE PEOPLE, Plaintiff and Respondent, v. RANDELL ALBERT HOPKINS, Defendant and Appellant.
Randell Albert Hopkins, in pro. per.; Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Nos. FWV011648 & FVI018838 Joseph B. Widman and Debra Harris, Judges. Affirmed.
Randell Albert Hopkins, in pro. per.; Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I.
INTRODUCTION
Defendant and appellant Randell Albert Hopkins appeals from the trial court's postjudgment orders for relief pursuant to Penal Code sections 1203.42 and 1203.4 in two matters, case Nos. FWV011648 and FVI018838. Appointed counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), requesting this court to conduct an independent review of the record. In addition, defendant has had an opportunity to file a supplemental brief with this court and has done so. We have considered defendant's arguments and affirm the trial court's postjudgment orders granting defendant relief in case No. FWV011648 and denying him relief in case No. FVI018838. (Delgadillo, supra, at pp. 231-232.)
All future statutory references are to the Penal Code unless otherwise indicated.
II.
PROCEDURAL BACKGROUND
A. Case No. FWV011648
In January 1997, a felony complaint was filed in case No. FWV011648, charging defendant with first degree residential burglary (§ 459; count 1) and evading a peace officer (Veh. Code, § 2800.1; count 1). Defendant pled guilty to count 1. In return, count 2 was dismissed and defendant was placed on felony probation for a period of three years on various terms and conditions, including serving 180 to 365 days in county jail.
On October 26, 2023, defendant, representing himself, filed a petition for dismissal of case No. FWV011648 pursuant to sections 1203.4 and 1203.42.
A hearing on defendant's petition was held on December 13, 2023. The People did not oppose the petition. The trial court granted defendant relief pursuant to section 1203.42. The court denied defendant's request to "communicate with the Victorville Court" that he is deserving of relief as to his other matter. Defendant then withdrew his guilty plea, entered a plea of not guilty, and the conviction was dismissed.
Defendant timely appealed and requested a certificate of probable cause based on alleged due process violations. The trial court denied defendant's request for certificate of probable cause.
B. Case No. FVI018838
In September 2005, a second amended information was filed in case No. FVI018838, charging defendant with first degree burglary with a person present (§§ 459, 667.5, subd. (c); count 1) and first degree residential robbery (§ 211; count 2). The second amended information also alleged that defendant had sustained one prior serious or violent felony strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)(1)).
On the first day of trial, September 19, 2005, defendant withdrew his plea of not guilty and pled guilty to count 1 and admitted the truth of the prior strike conviction and the two prior serious felony convictions. In exchange, count 2 was dismissed and defendant was sentenced to an agreed-upon term of 22 years in state prison calculated as follows: the upper term of six years on count 1, doubled to 12 years due to the prior strike, plus 10 years (five years each) for the two prior serious felony convictions.
On October 30, 2023, defendant filed a petition for dismissal under sections 1203.4, 1203.4a, 1203.41, and 1203.42 in case No. FWI018838. He claimed that he had been rehabilitated and requested dismissal in order to obtain employment.
After counsel was appointed for defendant, a hearing on defendant's petition was held on February 7, 2024. The trial court denied defendant's petition, finding defendant was ineligible for relief pursuant to sections 1203.4 and 1203.42 because he had been sentenced to state prison. Defendant timely appealed.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the authority of Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case and a summary of the procedural background. (See Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436. Counsel considered potential issues on appeal but found no specific arguments as grounds for relief, and requests that we exercise our discretion and independently examine the appellate record for any arguable issues. Under Anders, which requires "a brief referring to anything in the record that might arguably support the appeal," (Anders, supra, at p. 744) counsel raises the issues of whether the trial court erred in denying defendant's request to contact the Victorville Superior Court and whether the court erred in denying defendant relief pursuant to section 1203.4 or section 1203.42 in case No. FVI018838.
We offered defendant an opportunity to file a personal supplemental letter brief, and he has done so. Without any support, defendant argues that his convictions were illegal in both cases and challenges the validity of the pleas and admissions purportedly based on constitutional grounds and ineffective assistance of counsel. He also claims unwarranted hardship, retaliation, reprisals, and damages, and requests relief from civil and criminal convictions.
When appealing from a postconviction order a defendant does not have a constitutional right to independent review under Anders/Wende if appellate counsel cannot identify any arguable issues. (Delgadillo, supra, 14 Cal.5th at pp. 227, 231.) However, "[i]f the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Id. at p. 232.) "If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned." (Ibid.) We are not required to conduct "an independent review of the entire record to identify unraised issues" but may do so at our discretion. (Ibid.)
As a preliminary matter, we find defendant's appellate contentions beyond the scope of the present appeal. Defendant's claims related to his pleas, admissions and/or convictions are not cognizable in section 1203.4 or 1203.42 proceedings. (See People v. Farfan (2021) 71 Cal.App.5th 942, 947 ["mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error"].) Defendant makes no substantive argument that would support reversing any trial court order from which he appeals. Defendant did not appeal following his convictions in 1997 and 2005, and thus his alleged constitutional violations and ineffective assistance of counsel claims relating to his pleas and convictions are not cognizable in this appeal. Without any reasonable explanation for the delay, we deem defendant's claims of error to be waived. (People v. Senior (1995) 33 Cal.App.4th 531, 538 ["where a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay"]; People v. Jordan (2018) 21 Cal.App.5th 1136, 1141, 1144-1145 [concluding that because the defendant did not raise the penalty assessment claims in his original appeal, he could not raise them in subsequent appeal].) We thus limit our consideration to those issues concerning defendant's petitions for relief pursuant to sections 1203.4 and 1203.42.
Section 1203.4, subdivision (a)(1) applies to those petitioners on probation and not those sent to state prison. Specifically, that statute provides, "When a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if they are not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense, be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty . . . the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted . . . ." (§ 1203.4, subd. (a).)
This "interest of justice" language, however, does not extend available relief under the statute to former state prisoners. (See, e.g., People v. Borja (1980) 110 Cal.App.3d 378, 381-382 [rejecting the defendant's argument that "'interest of justice' language" in section 1203.4 expanded the trial court's power to vacate judgments of conviction where no probation was granted in felony cases]; People v. Chatman (2018) 4 Cal.5th 277, 291 ["relief under section 1203.4 is not available to former prisoners"]; People v. Parker (2013) 217 Cal.App.4th 498, 502 ["section 1203.4 applies to probationers, not parolees or former prisoners"].) Where a "trial court revokes probation and commits the defendant to state prison, the defendant's status changes from 'probationer' to 'prisoner' and the defendant is ineligible for section 1203.4 relief." (People v. Parker, supra, at p. 502.)
In this case, the record indicates that defendant's grant of probation in case No. FWV011648 was revoked and that he was subsequently sentenced to eight months in prison. And in case No. FWI018838, defendant was sentenced to 22 years in state prison. He was thus statutorily ineligible for relief pursuant to section 1203.4. The trial courts properly denied defendant's petitions for relief pursuant to section 1203.4.
Under section 1203.42, a defendant may be eligible for relief if he or she "was sentenced prior to the implementation of the 2011 Realignment Legislation for a crime for which the defendant would otherwise have been eligible for sentencing pursuant to subdivision (h) of [s]ection 1170 . . . ." If the defendant meets the initial eligibility criteria, the trial court, "in its discretion and in the interests of justice," "may permit the defendant to withdraw his or her plea of guilty . . . and enter a plea of not guilty . . . ." (§ 1203.42, subds. (a), (a)(1).) "[T]he court shall thereupon dismiss the accusations or information against the defendant and the defendant shall be released from all penalties and disabilities" stemming from the conviction. (§ 1203.42, subd. (a)(1).) Here, section 1203.42 simply does not apply to defendant because he was not sentenced pursuant to section 1170, subdivision (h)(5).
Defendant was sentenced in September 2005, more than five years before the 2011 Realignment Legislation became effective. (Stats. 2011, ch. 15, § 1.) Section 1170, subdivision (h)(7) specifies that the sentencing changes made to subdivision (h) by realignment "shall be applied prospectively to any person sentenced on or after October 1, 2011."
IV.
DISPOSITION
The trial court's postjudgment orders in case Nos. FWV011648 and FVI018838 are affirmed.
We concur: RAMIREZ P. J. McKINSTER, J.