Opinion
H041959
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM M. JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1353847)
Defendant William M. Jackson appeals after the superior court rejected his legal contention that he was not required to file a Penal Code section 1170.18 petition to obtain relief under Proposition 47 and subsequently "redesignated" his conviction as a misdemeanor. Defendant's probation on this conviction had been summarily revoked before the court made these rulings, and the court made no change in his probation status and did not resentence him on his conviction.
Subsequent statutory references are to the Penal Code.
Defendant contends that the superior court's ruling that he was required to file a petition to obtain Proposition 47 relief was erroneous, and he was instead entitled to "automatic[]" application of Proposition 47. He also asserts that the superior court erred in failing to specify that his petty theft with a prior (former § 666, subd. (a)) conviction was being "redesignated" as misdemeanor petty theft (§ 490.2). Finally, he maintains that the superior court erred in leaving his probation status as "revoked" rather than holding further proceedings to resolve alleged probation violations. The Attorney General asserts that defendant cannot obtain appellate review of the superior court's legal ruling that he was required to file a petition to obtain Proposition 47 relief or its failure to alter his probation status. He also asserts that the superior court's order "redesignat[ing]" defendant's conviction as a misdemeanor must be reversed because the superior court lacked authority to make such an order. We agree with the Attorney General and reverse the superior court's order.
The Attorney General also contends that the prosecution must be permitted to withdraw from the plea bargain if defendant files a section 1170.18 petition upon remand. We need not address this contention because the California Supreme Court rejected it in Harris v. Superior Court (2016) 1 Cal.5th 984 [prosecution not permitted to withdraw from plea bargain when a defendant files a petition under section 1170.18].
I. Background
In 2013, defendant pleaded no contest to felony petty theft with three or more priors (former § 666, subd. (a)), and the court suspended imposition of sentence and placed him on probation with an eight-month county jail term as a condition of probation. In September 2014, the probation department filed a petition seeking revocation of defendant's probation after defendant committed new crimes in Fresno County. The trial court summarily revoked defendant's probation and issued a bench warrant for his arrest. In October 2014, defendant filed a section 1203.2a request for disposition of his probation. He gave up his right to counsel and his right to be present at the probation hearing.
Proposition 47 took effect on November 5, 2014. It amended section 666, which had provided for alternative felony or misdemeanor punishment for petty theft with three or more prior offenses, to limit its application to registered sex offenders and others with specified prior convictions. (Proposition 47, § 10; Stats. 2013, ch. 782, § 1.) Thus, after Proposition 47's enactment, a person who, like defendant, is not a registered sex offender and does not have any of the specified prior convictions is subject to only misdemeanor punishment for a petty theft offense even if he or she has prior theft convictions. (§§ 490, 490.2.) Proposition 47 also enacted section 1170.18. Section 1170.18, subdivision (a) applies to a person who, when Proposition 47 took effect, was "serving a sentence" for a conviction for an offense that would have been a misdemeanor under Proposition 47's provisions. Under section 1170.18, subdivision (a), such a person may petition for "resentencing" on such a conviction. (§ 1170.18, subd. (a).) Section 1170.18, subdivision (f) permits a person who has "completed his or her sentence" for a conviction for an offense that was a felony but is now a misdemeanor under Proposition 47, to apply to have the conviction "designated" as a misdemeanor. (§ 1170.18, subd. (f).)
On November 26, 2014, defendant, having completed his Fresno sentence, appeared in court on the probation matter and was released on his own recognizance after he agreed to appear at a December 16 hearing. On December 5, his trial counsel filed a brief on the issue of whether a person on probation was subject to the resentencing provisions of section 1170.18, subdivision (a). This boilerplate brief made no mention of defendant. The prosecution filed a boilerplate brief in response.
On December 19, 2014, the superior court held a hearing in nine cases, including defendant's case, to address the legal issue of whether a defendant on probation with imposition of sentence suspended was "serving a sentence" within the meaning of Proposition 47. These nine defendants had felony convictions for offenses that were now misdemeanors under Proposition 47, they were all on probation with imposition of sentence suspended, and they had either been found to be in violation of probation or were alleged to have violated their probation. At the commencement of the hearing, the court noted: "[M]aybe all these cases have a petition filed. I did not see one in every file." Defendant's trial counsel pointed out to the court that the crime defendant had been convicted of "no longer exist[s] and you might have to find another code section otherwise" if the conviction were to be treated as a misdemeanor. The court said: "It's my understanding that what's going to happen with these cases is that they're going to be set back on the VOP [(violation of probation)] calendar, and we'll do that now, but in the interim I will issue an order, okay." The court continued the nine cases to December 29.
Our appellate record contains nothing to indicate that defendant ever filed a petition.
On December 23, 2014, the court issued a 15-page written order finding that a defendant who "is otherwise qualified and is on felony probation for an offense made a misdemeanor by Proposition 47 with imposition of sentence suspended" is " 'currently serving a sentence' within the meaning of section 1170.18(a) and must petition for recall of sentence and resentencing under that subdivision in order to now receive relief under [Proposition 47]." The defense filed a motion for reconsideration of this order, and the court set a hearing on the reconsideration motion for January 5, 2015. The December 29 hearing was continued to January 12, 2015 "for disposition."
On January 5, 2015, the court heard the reconsideration motion. Defendant's trial counsel raised the issue of whether a jail term served as a condition of probation would be the maximum sentence in a resentencing under section 1170.18. The court agreed to permit briefing on that issue. On January 6, defendant's trial counsel filed a brief arguing that a jail term served as a condition of probation would be the "new maximum sentence" in any resentencing proceeding. The January 12 hearing was continued to January 21. On January 20, the court filed an amended order, this time 22 pages long, again finding that a defendant on probation was required to petition for relief under section 1170.18. The court declined to decide the issue of the "maximum sentence" because it deemed that issue "not ripe."
The January 21, 2015 hearing was extremely brief. "THE COURT: In this matter, probation remains revoked. Is he going to admit on this one? [¶] He was already sentenced, was he not? [¶] MR. CAMPERI [defendant's trial counsel]: Yes. [¶] THE COURT: All right. In this one probation remains revoked. And Count 1 is redesignated as a misdemeanor. Thank you."
On January 30, 2015, defendant filed a notice of appeal and requested a certificate of probable cause. He stated in the notice that he was challenging post-plea matters and the court's "[i]ncorrect application [of] Proposition 47 to eligible felony probationers." In his request for a certificate, he also challenged the court's action in redesignating his conviction as "a misdemeanor violation of section 666." The superior court granted his request for a certificate.
II. Discussion
A. Appealability
We requested supplemental briefing addressing whether defendant's challenges are properly before us in this appeal.
The Attorney General contends that defendant's challenge to the superior court's ruling that he was required to file a petition to obtain Proposition 47 relief is not properly before us because that ruling was not an appealable order. Defendant asserts that this ruling was an appealable order because it "affected his substantial rights." A defendant may appeal from "any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b).) The superior court's legal rulings on the need for a petition did not constitute an "order" affecting defendant's "substantial rights." Defendant had not filed a petition under section 1170.18, subdivision (a) or an application under section 1170.18, subdivision (f). His legal argument that he was not required to file a petition was based on his claim that he was entitled to benefit from Proposition 47 without any ruling by the superior court on a petition. Since the superior court's ruling neither granted nor denied any petition by defendant, and there is no indication that defendant had any right to seek a legal ruling on this issue in the absence of a petition, the court's ruling was not an "order" affecting his "substantial rights." We therefore lack jurisdiction to review the superior court's ruling on this issue.
Defendant concedes that the appellate record contains no "written petition" by defendant under section 1170.18. However, he claims that "the record is clear that he made such a motion," and he argues that "there is clear evidence that either a written and/or an oral motion had been made." None of his record citations contains any indication that defendant actually filed a written petition or articulated an oral petition. Defendant relies on four minute orders that state in their printed headings that each of these hearings (December 19 and 29 and January 12 and 21) was a "HEARING ON PC1170.18 PETITION." Defendant also relies on his brief below concerning the "maximum sentence" upon a resentencing; this brief does not mention a written or oral petition. Finally, defendant relies on three pages of the reporter's transcript of the December 19 hearing. At that hearing, which concerned nine defendants, the court noted "that in some of these files there is what I saw entitled to petition filed under 11707.18 [sic] of the Penal Code," and the court also noted that "maybe all these cases have a petition filed. I did not see one in every file." Defendant's trial counsel made no oral petition on defendant's behalf nor did he assert that defendant had filed a petition. Nothing in the record supports defendant's claim that he filed a written petition or made an oral petition under section 1170.18, subdivision (a). --------
The Attorney General also contends that defendant's challenge to his probation status is not properly before us in this appeal because this is not an appeal from any order altering his probation status. Defendant responds that the superior court's January 2015 order "redesignat[ing]" his conviction as a misdemeanor constituted an order "that probation remain revoked without setting any future court dates." While it is true that the court noted at that hearing that defendant's probation would remain revoked, it took no action in that regard. Defendant's probation had been summarily revoked in September 2014, and nothing changed in that regard as a result of the January 2015 hearing. The record before us in this appeal does not indicate whether a hearing was held on defendant's probation violation or whether the probation violation allegation was ever resolved. Under these circumstances, we can find no support for defendant's claim that the superior court's January 2015 indication that defendant's probation remained revoked constituted an "order" that affected defendant's "substantial rights." If the superior court has failed to resolve defendant's probation violation matter as required by law, defendant must seek other avenues for resolving that issue below, not an appeal from an order that had no impact on his probation status.
The Attorney General and defendant agree that the superior court's order "redesignat[ing]" defendant's conviction as a misdemeanor is properly before us in this appeal. We therefore proceed to the merits of that contention.
B. Redesignation
Both defendant and the Attorney General contend that the superior court erred in redesignating defendant's conviction as a misdemeanor. Defendant argues that the court erred in failing to identify the misdemeanor offense as petty theft. The Attorney General contends that the court lacked the authority to redesignate defendant's conviction as a misdemeanor because defendant had not filed a section 1170.18, subdivision (f) application and could not have qualified for redesignation under that provision because he had not completed the sentence for his conviction.
Section 1170.18, subdivision (a) provides a mechanism for a defendant serving a sentence for a conviction that would have been a misdemeanor under Proposition 47 to petition the court to have that conviction resentenced as a misdemeanor. Section 1170.18, subdivision (f) provides a mechanism for a defendant who has completed a sentence for a conviction that would have been a misdemeanor under Proposition 47 to apply to the court to have that conviction redesignated as a misdemeanor. Defendant never filed an application for redesignation of his conviction. Thus, the superior court lacked the authority to redesignate his conviction as a misdemeanor. Hence, we agree with the Attorney General that the superior court's order must be reversed and the matter remanded with directions to vacate that order as unauthorized.
III. Disposition
The superior court's January 2015 order redesignating defendant's conviction as a misdemeanor is reversed, and the court is directed to vacate that order.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.