Opinion
F067587
11-13-2014
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEWIS, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ivan Marrs, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. MCR017299)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ivan Marrs, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
"On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added [Penal Code] section 1170.126 (hereafter the Act). The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)" (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)
Further statutory references are to the Penal Code unless otherwise stated.
Shortly after the Act went into effect, Michael Lewis (defendant), an inmate serving a term of 21 years plus 50 years to life in prison following conviction of felonies that were not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for resentencing under the Act. Following a hearing, the petition was denied. We now hold the ruling must be vacated and the matter remanded so the petition can be heard by the judge who imposed sentence in defendant's commitment case.
FACTS AND PROCEDURAL HISTORY
On June 25, 2003, an undercover officer purchased .47 grams of methamphetamine from defendant for $20. On July 2, 2003, the same officer purchased .15 grams of base cocaine from defendant for $20. As a result, a jury convicted defendant of selling methamphetamine (Health & Saf. Code, § 11379, subd. (a); count one) and selling cocaine base (id., § 11352, subd. (a); count two). In a bifurcated proceeding, defendant admitted three prior drug conviction enhancements as to count one (id., § 11370, subd. (c)) and three as to count two (id., § 11370, subd. (a)). He also admitted having suffered two prior strike convictions (§ 667, subds. (b)-(i)) — 1980 and 1988 convictions for robbery — and having served three prior prison terms (§ 667.5, subd. (b)). Madera County Superior Court Judge James E. Oakley sentenced him to consecutive indeterminate terms of 25 years to life on counts one and two, for a total indeterminate term of 50 years to life, plus consecutive enhancements that resulted in a determinate sentence of 21 years.
On January 25, 2013, defendant filed a petition to recall his sentence and be resentenced pursuant to the Act. For unknown reasons, although Madera County Superior Court's local rules show Judge Oakley was available, hearing on the petition was calendared before Madera County Superior Court Judge Joseph A. Soldani. Prior to the hearing, the People filed written opposition in which they set out, inter alia, defendant's numerous adult convictions, parole violations, and in-prison disciplinary violations, and argued resentencing defendant would result in an unreasonable risk of danger to public safety. Defendant responded by setting out his record of rehabilitation and arguing in favor of resentencing.
By separate order, we have taken judicial notice of our opinion in defendant's prior appeal (People v. Lewis (Sept. 13, 2005, F045966) [nonpub. opn.]) and the Superior Court of California, County of Madera, Local Rules of Court, 2013 Miscellaneous Order No. 2.
It appears likely the petition was calendared before Judge Soldani because his assignment was criminal cases with particular terminal case numbers. Judge Oakley, by contrast, was assigned to hear civil cases.
Judge Soldani held a hearing on the petition on June 21, 2013. After argument by both counsel and statements by defendant concerning programs in which he participated in prison and some of his rule violations, Judge Soldani ruled: "Mr. Lewis, I am going to deny your motion to be re-sentenced. I am going to do it on the basis of your continuing record, the violence of the prior -- I'm sorry, the prior strike charges, and the fact that as long as you're out of custody, you committed one offense after another or you violated your parole numerous times. You went into prison. There are numerous rules violations. The Court's concerned that you are an unreasonable risk of danger to the public. And so on that basis, your record, your rules violations, that the Court's going to deny the motion ...." Judge Soldani clarified that he placed weight on defendant's "commendable" rehabilitative records, but concluded that "[w]hen you put everything together, he's an unreasonable risk of danger."
DISCUSSION
Defendant contends Judge Soldani abused his discretion by denying the petition to recall sentence. At a minimum, he says, the matter should be remanded with directions that the petition be heard by Judge Oakley, the original sentencing judge. We agree remand is required; accordingly, we do not reach the abuse-of-discretion claim.
We acknowledge the Attorney General's assertion defendant forfeited any challenge to Judge Soldani hearing the petition when he failed to object or to request it be heard by Judge Oakley. (See, e.g., People v. Simon (2001) 25 Cal.4th 1082, 1103.) We have the authority to reach defendant's claim, regardless. (People v. Smith (2003) 31 Cal.4th 1207, 1215; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) Rather than deal with the issue by means of a habeas corpus petition alleging ineffective assistance of counsel, which defendant has also filed, we find it appropriate to exercise that authority in this case. (See People v. Crittenden (1994) 9 Cal.4th 83, 146.) Thus, we do not determine whether the forfeiture doctrine applies where, as here, a statute requires a matter to be heard by a particular judge except under specified circumstances, or whether a true waiver is required instead. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301 & fn. 24.)
The Attorney General concedes that if we reject her forfeiture argument, remand is appropriate.
Section 1170.126, subdivision (b) specifies that a petition for recall of sentence under the Act is to be filed "before the trial court that entered the judgment of conviction in [the defendant's] case." Subdivision (j) of the statute provides: "If the court that originally sentenced the defendant is not available to resentence the defendant, the presiding judge shall designate another judge to rule on the defendant's petition." Thus, the statute requires "that the initial sentencing judge shall rule on the prisoner's petition," if that judge is available. (People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at p. 1301.) We interpret "available" to mean a current member of the bench who is actively presiding over matters that come before the court, regardless of that judge's internal administrative assignment (e.g., civil law and motion, civil trials, family law, juvenile dependency, criminal trials). (See id. at p. 1289 [petition assigned to different judge where original sentencing judge deceased].)
Madera County Superior Court's local rules show Judge Oakley was available to hear defendant's petition. The official Web site of the California Judicial Branch shows he is still an active member of the Madera County Superior Court bench. (Cal. Cts., Jud. Branch Home, Super. Cts. Judges Roster, at < http://www.courts.ca.gov/2948.htm > [as of Nov. 13, 2014].) Hence, it appears he is still available. Accordingly, we will vacate Judge Soldani's order denying the petition and remand the matter with directions that Judge Oakley hear the petition. If Judge Oakley is no longer available, we will direct that Judge Soldani's order be reinstated. Once Judge Oakley rules on the petition or Judge Soldani's order is reinstated, the parties are free to exercise their right of appeal as permitted by law.
DISPOSITION
The order denying the petition to recall sentence pursuant to Penal Code section 1170.126 is reversed and the matter is remanded with directions that Judge Oakley hear the petition. If Judge Oakley is unavailable, Judge Soldani's ruling of June 21, 2013, denying the petition, shall be deemed reinstated.