Opinion
F060601 Super. Ct. No. CRF19770
09-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JESSE ORLIN JAMES, Defendant and Appellant.
Matthew H. Wilson, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers, Deputy Attorney General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Dawson, J. and Detjen, J.
APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.
Matthew H. Wilson, under appointment by the Court of Appeal, Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers, Deputy Attorney General for Plaintiff and Respondent.
Appellant, Jessie Orlin James, appeals from a denial of his postjudgment application requesting additional postsentence conduct credit (Pen. Code, § 2933). We will find that the court's denial of the application is not an appealable order and dismiss the appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On December 12, 2005, members of the Tuolumne Sheriff's Department Narcotics Team served a search warrant at James's home. During the search, officers found several firearms, a lockbox containing various types of ammunition, a silencer, and numerous fireworks. The officers also found pay-owe sheets, a large quantity of baggies in different sizes, and glass pipes for smoking methamphetamine.
On March 22, 2006, the district attorney filed a first amended information charging James and a codefendant with 22 counts of weapon and drug violations.
On March 22, 2006, in exchange for a stipulated term of 14 years, James pled guilty to one count each of possession for sale of methamphetamine (count I/Health & Saf. Code, § 11378), possession of a short-barreled shotgun (count III/§ 12022, subd. (a)), child endangerment and abuse (count XVII/§ 273 a, subd. (a)), and making criminal threats (count XVIII/§ 422) and five counts of possession of a firearm by a person convicted of certain offenses (counts V, VI,VII, VIII & IX/§ 12020, subd. (c)(1)). James also admitted an arming enhancement in count I and pled guilty to misdemeanor battery (§ 242) in an unrelated case.
On April 24, 2006, the court sentenced James to the stipulated 14-year term as follows: the upper term of three years on count I, with a five year arming enhancement in that count, a consecutive eight-month term (one third the middle term of two years) on each of counts III, V, VI, VII, VIII, IX and XVIII, and a 16-month term on count XVII (one third the middle term of four years).
On June 23, 2010, James filed an "Application for Full Crediting of Back Time Credits," asking the court to grant him one-for-one worktime credit pursuant to section 2933 for 137 days he spent in postsentence custody prior to being transferred to the Department of Corrections and Rehabilitation and 35 days he spent in postsentence custody at the Department of Corrections and Rehabilitation before his initial classification.
On June 25, 2010, the court denied James's application.
On July 12, 2010, James filed an appeal challenging the court's denial of his application.
On December 14, 2010, James's appellate counsel filed a Wende brief in this matter.
People v. Wende (1979) 25 Cal.3d 436.
On July 27, 2011, this court directed the parties to brief the following issues: 1) whether the June 25, 2010, order denying James's application for additional credit was an appealable order; 2) if it was, whether James had provided an adequate record for review; and 3) if not whether the matter should be dismissed.
ANALYSIS
In People v. Mendoza (1986) 187 Cal.App.3d 948 (Mendoza), this court addressed the procedural issue of whether a defendant may appeal from an application to calculate postjudgment credits. (Id. at p. 950.) In Mendoza, the defendant was received by Soledad State Prison seven days after sentencing. On July 3, 1984, 50 days after his arrival at the prison, he was assigned to a credit qualifying assignment as a dairyman. (Ibid.)
On May 9, 1985, the defendant in propia persona filed an ex parte application for one-for-one credits for his postsentence local detention of 7 days and state prison process time of 50 days. The trial court treated the application as a petition for writ of habeas corpus and denied it the same day.
On appeal, we explained:
"Presentence credit evaluation requires factual findings based on information uniquely under the control of the trial courts. Trial courts do not have the same information available to calculate postsentence credits.... Such information is determined by the prison authorities. One-for-one worktime credits must be calculated initially by the prison authorities who are authorized to grant them in the first instance. People v. Chew (1985) 172 Cal.App.3d 45 at pages 50-51... specifically ruled that it is an abuse of discretion for a trial court to calculate postsentence credits before there has been an administrative review of the credits:
"[Code] sections (§§ 2930-2935) assign to the Director of Corrections the duty of determining prison behavior and worktime credits, including the determination of appropriate worktime credits while the defendant is away from prison awaiting resentencing. Provision is also made for administrative review of these prior credit determinations. Therefore, a sentencing court abuses its discretion when it attempts to determine prison behavior and worktime credits earned to date, except when it is done after the administrative process is completed." (Mendoza, supra, 187 Cal.App.3d at p. 954.)
In affirming the judgment, we concluded that the motion-appeal procedure followed by the defendant was improper because, "It is the duty of the Director of Corrections to first review all claims for worktime credits. The defendant must exhaust all administrative remedies before seeking judicial review of his claim for worktime credits. [Citations.]" (Mendoza, supra, 187 Cal.App.3d at p. 954.) "Defendant must first bring all worktime credit issues to the Department of Corrections pursuant to title 15, section 3003 et sequitur, for the reasons set forth in People v. Chew, supra, 172 Cal.App.3d at pages 50-52. If the dispute remains unresolved, the defendant may then petition the trial court for habeas corpus relief." (Id. at p. 955.)
In accord with Mendoza, we conclude that the court here did not have jurisdiction to entertain James's application seeking additional postsentence credit.
Moreover, section 1237 provides:
"An appeal may be taken by the defendant:
"(a) From a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5. A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial.
"(b) From any order made after judgment, affecting the substantial rights of the party."
The instant appeal is not from a final judgment. Further, the court's order denying James's application is not an "order made after judgment, affecting the substantial rights of the party." (§ 1237(b).) Since James did not have the right to request the court to consider an application that the court did not have jurisdiction to entertain, its denial of the application could not have affected his substantial rights. (People v. Pritchett (1993) 20 Cal.App.4th 190, 193-194.) Accordingly, we conclude that the order denying James's application for postsentence credit was not appealable and we will dismiss his appeal.
Although in Mendoza we affirmed the judgment instead of dismissing the appeal, it does not appear that the People argued for dismissal on the basis that the denial of the defendant's motion or writ was not an appealable order.
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DISPOSITION
The appeal is dismissed.