Opinion
A165926
12-28-2023
THE PEOPLE, Plaintiff and Respondent, v. QUADAIR TYREE JONES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. FCR338835)
BROWN, P. J.
Defendant Quadair Tyree Jones appeals from the trial court's order denying his request for resentencing. We dismiss the appeal for lack of jurisdiction.
BACKGROUND
The Sacramento County District Attorney charged Jones with robbery (Pen. Code, § 211; count 1) and alleged that a principal was armed with a firearm (§ 12022, subd. (a)(1)). Jones was also charged with misdemeanor drug offenses under Health and Safety Code sections 11377, subdivision (a) (count 3) and 11364.1 (count 4).
All further statutory references are to the Penal Code unless otherwise specified.
In February 2015, Jones entered no contest pleas to the misdemeanor charges. Thereafter, he entered a plea bargain whereby he pleaded no contest to the robbery charge and admitted the section 12022, subdivision (a)(1) allegation in exchange for a sentence "lid" of two years.
The probation report for the initial sentencing describes the promise as "Two (2) years State Prison and one (1) year State Prison stayed, as to the 12022(a)(1) P.C. allegation." The trial court's minute order for the plea, however, clearly reflects the two-year sentence lid.
On March 13, 2015, the court found unusual circumstances warranted granting Jones probation. It suspended the imposition of sentence and placed Jones on five years of formal probation with various terms and conditions. These conditions included Jones serving 364 days in the county jail, obeying all laws, and being subject to a search condition.
In 2016, Jones's probation was transferred to Contra Costa County, and, in 2018, to Solano County. In each county, Jones's probation was revoked following probation violations and reinstated.
On February 13, 2020, Jones's probation was revoked again based on an arrest for the receipt of stolen property and drug possession. The People declined to file a new case in light of the probation revocation matter. After a probation revocation hearing, the court found Jones to be in violation of his probation.
On August 10, 2020, the court held a sentencing hearing and imposed a four-year aggregate prison sentence but suspended its execution. The court placed Jones on a new grant of probation for three years.
In 2021, the court again found Jones had violated the terms of his probation. At a June 28, 2021 sentencing hearing, the court denied Jones's request to reinstate his probation and lifted the suspension on the execution of Jones's sentence. The court stated, "So at this point I'll impose the four years that was previously suspended in [the] case ending 835, and that will be three years mid term on the robbery count, plus one year pursuant to 12022. I think that was (a)(1)." The minute order for the June 2021 hearing and the abstract of judgment, however, recorded an aggregate three-year sentence, with a two-year middle term sentence on count 1 and a one-year sentence for the section 12022, subdivision (a)(1) enhancement.
On March 22, 2022, a case records analyst at the California Department of Corrections and Rehabilitation (CDCR) wrote to the court, stating: "A review of the documents delivered with the above-named inmate indicates the Abstract of Judgment and/or Minute Order may be in error, or incomplete, for the following reasons: [¶] The Abstract of Judgment and Minute Order reflect Count 1, PC 211 Robbery in the Second degree with the middle term of 2 years imposed. However, the sentencing triad for this offense is 2 years, 3 years or 5 years. [¶] Please review your file to determine if a correction is required. When notified by the [CDCR] that an illegal sentence exists, the trial court is entitled to reconsider all sentencing choices, People v. Hill 185 Cal.App.3d 831. We would appreciate your providing a certified copy of any Minute Order or modified Abstract of Judgment to this Department. May we also request the attached copy of this letter be returned with your response. If this case is under appellate review, please forward a copy of this letter to the appellate attorney."
On April 4, 2022, the court corrected the minute order from June 28, 2021 and the abstract of judgment to reflect the originally imposed three-year middle term on count 1.
On May 13, 2022, a CDCR case analyst again wrote to the court, stating in part: "Our department did not receive an additional Minute Order reflecting the new term with the additional 1 year added or any documentation that this was agreed upon by counsel. Therefore, this letter is requesting clarification as to the Courts (sic) intent regarding Count 1 Low Term 2 years or Middle term 3 years with the Total Term of 3 years or 4 years respectively."
The court ordered a transcript of the June 28, 2021 hearing and calendared the matter for June 6, 2022, for the purpose of "CDCR clarification of abstract." The court notified counsel. The People and Jones's counsel were present at the June 6, 2022 hearing, and the court therein denied Jones's request to be resentenced. The court's minutes reflect that the matter was on for "clarification of sent[ence]," and the court ordered that the "amended abstract from 04/04/2022 is correct."
On July 29, 2022, Jones filed a pro se notice of appeal, indicating an appeal from a judgment entered "6-28-21."
DISCUSSION
Given that Jones's July 2022 notice of appeal lists the court's June 2021 order as the order or judgment being appealed, we invited the parties to brief whether this court has jurisdiction over this appeal. After reviewing their briefing, we conclude that an appeal from the court's June 2021 order is untimely and the court's June 2022 order was not appealable.
"A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' . . . An untimely notice of appeal is 'wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.' [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all." (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) A criminal notice of appeal must generally "be filed within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rule 8.308(a).) The order or judgment appealed must also be appealable. (See § 1237.)
All further rule references are to the California Rules of Court.
Jones's July 2022 notice of appeal of the June 2021 order is untimely.
Seeking to bypass the untimeliness bar, Jones argues that we should construe his notice of appeal to encompass the court's order on June 6, 2022. Although his briefing on this issue is not entirely clear, Jones seems to contend that the court's order denying his June 2022 resentencing request was appealable because (1) his sentence was before the court at the CDCR's instigation, and (2) the court denied Jones's request to correct an unauthorized sentence. Even if we were to liberally construe the notice of appeal to embrace a challenge to the June 2022 order (rule 8.304(a)(4)), Jones's arguments are unconvincing.
First, the June 2022 order was not appealable as an order denying a CDCR recommendation for recall and resentencing under section 1172.1." 'Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.'" (People v. Codinha (2023) 92 Cal.App.5th 976, 984.) As an exception to this rule, the court has statutory authority to recall and resentence a defendant at any time upon the recommendation of the Secretary of the CDCR. (§ 1172.1, subd. (a)(1) .) Here, however, the Secretary of the CDCR did not recommend recall and resentencing. Instead, a CDCR case records analyst pointed out a clerical error in the abstract of judgment and minute order, which reflected a mistaken two-year middle term sentence on the section 211 count rather than the correct three-year middle term sentence. After receiving the CDCR's letter, the court corrected the clerical error, and it held subsequent proceedings only to clarify the sentence originally imposed. In these circumstances, the order denying resentencing is not appealable because the Secretary of the CDCR did not recommend recall and resentencing and the court had no jurisdiction to act under section 1172.1. (People v. Magana (2021) 63 Cal.App.5th 1120, 1125-1126; see also People v. Humphrey (2020) 44 Cal.App.5th 371, 373, 378 [concluding similar CDCR letter was not recommendation for recall and resentencing].)
At the time of the CDCR letters, former section 1170.03 was operative. Effective June 30, 2022, the Legislature renumbered section 1170.03 to section 1172.1, but made no substantive changes. (People v. Salgado (2022) 82 Cal.App.5th 376, 378 & fn. 2.) We refer herein to the current version of the statute.
Section 1172.1, subdivision (a)(1) states: "When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the Department . . ., the court may . . . at any time upon the recommendation of the secretary . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if [the defendant] had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence."
Next, the unauthorized sentence doctrine does not provide a basis for appellate jurisdiction over the June 2022 order. To invoke the unauthorized sentence rule on appeal, the reviewing court "must have jurisdiction over the [judgment]." (In re G.C. (2020) 8 Cal.5th 1119, 1130.) Thus, for Jones's appealability argument to succeed, he must establish the following: (1) the trial court had jurisdiction to correct an unauthorized sentence; (2) Jones requested that the court do so; and (3) the court's order denying his request is appealable. But the problem Jones faces is that the record does not show that he asked the court to resentence him to correct an unauthorized sentence. The record does not include the reporter's transcript of the hearing on June 6, 2022, and the minute order merely states, "Counsel's request to resentence defendant is denied." Thus, even assuming that trial courts have jurisdiction to correct unauthorized sentences that have become final (People v. Codinha, supra, 92 Cal.App.5th at p. 993; but see People v. King (2022) 77 Cal.App.5th 629, 640641 ) and the denial of such a request is appealable, the record before us is insufficient to establish the appealability of the June 2022 order.
Moreover, we have reviewed the record and the briefs, and, even if we were not compelled to dismiss the appeal as stated above, we would reject Jones's primary claim that his four-year sentence violated the terms of his plea bargain. We agree with the Attorney General that the plea bargain did not contain a sentencing cap applicable to all future probation violations.
Where a defendant is granted probation and the plea bargain makes no mention of what will happen if probation is violated and revoked, the great weight of authority refutes Jones's contention in this appeal. (See People v. Martin (1992) 3 Cal.App.4th 482, 485-489 [plea requiring defendant to be sentenced to no more than two years or placed on probation was not violated by imposition of four-year sentence after probation revocation].) "Several cases have concluded that where a defendant granted probation as part of a plea bargain violates that probation, subsequent sentencing is not limited by the terms of the original plea." (Id. at p. 487, citing People v. Bookasta (1982) 136 Cal.App.3d 296, 299-300; People v. Jones (1982) 128 Cal.App.3d 253, 262; People v. Turner (1975) 44 Cal.App.3d 753, 757; People v. Allen (1975) 46 Cal.App.3d 583, 590; see also People v. Segura (2008) 44 Cal.4th 921, 934 [stating in dicta, "[I]t is well established that when 'a defendant granted probation as part of a plea bargain violates that probation, subsequent sentencing is not limited by the terms of the original plea.' "].)" 'A consummated plea bargain is not a perpetual license to a defendant to violate his probation. The plea bargain does not insulate a defendant from the consequences of his future misconduct. "A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever." '" (People v. Martin, at p. 487.)
People v. Alkire (1981) 122 Cal.App.3d 119 (Alkire), the lone case Jones urges us to follow, is not persuasive. Alkire held, over a dissent, that, absent an express agreement to the contrary, a sentence lid agreed to as part of a plea bargain limits the length of sentence that may be imposed following the revocation of probation. (Id. at p. 121.) Alkire, however, has since been disavowed by the authoring court. (People v. Hopson (1993) 13 Cal.App.4th 1, 2-3 [stating "we choose at this time to reject our prior holding in Alkire" and holding that plea bargain conditioned on no more than two-year prison sentence was not violated by sentence of three years and eight months after revocation of probation where plea did not specify what would happen if defendant violated probation].)
Here, Jones entered a no contest plea on the condition that he be sentenced to no more than two years of confinement. Instead of imposing a two-year sentence, the court found unusual circumstances and granted Jones probation. At that point, the plea agreement was fully performed. Jones subsequently violated his probation. As in People v. Martin, supra, 3 Cal.App.4th at page 488, the record here does not reflect, nor does Jones demonstrate, that there was an express agreement that Jones would receive only two years of confinement if he were to violate probation. In these circumstances, the court's imposition of a four-year sentence after revoking Jones's probation did not violate the plea bargain.
Finally, there is no merit to Jones's alternative claims that the court impermissibly relied on his conduct after probation was granted when imposing sentence in contravention of rule 4.435(b)(1) or that his sentence violates current section 1170, subdivision (b)(6). Jones cites nothing in the record to support his first claim, and he failed to provide a reporter's transcript of the August 2020 sentencing hearing. As to section 1170, subdivision (b)(6), the amendment on which Jones relies became effective January 1, 2022 (see Stats. 2021, ch. 695, § 5; Stats. 2021, ch. 731, § 1.3) and does not apply to Jones's sentence, which was final before that date. (See In re Estrada (1965) 63 Cal.2d 740, 744 [ameliorative amendment applies to nonfinal judgments].)
Effective January 1, 2022, the low-term sentence became presumptively appropriate where any of certain specified circumstances was a "contributing factor in the commission of the offense," including where the defendant was a "youth" at the time of the offense. (§ 1170, subd. (b)(6).)
DISPOSITION
The appeal is dismissed.
WE CONCUR: GOLDMAN, J. HIRAMOTO, J. [*]
[*]Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.