Opinion
A167009
11-09-2023
THE PEOPLE, Plaintiff and Respondent, v. SERGIO OSEJO, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC080717A
TUCHER, P.J.
Defendant Sergio Osejo seeks to appeal an order denying his request for a continuance of his hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin). His counsel has filed a brief raising no issues and asking this court for an independent review of the record, citing People v. Wende (1979) 25 Cal.3d 436. We invited defendant to file a supplemental brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, and he has done so. Because an order denying a motion to continue a postjudgment hearing is not an appealable order (see Pen. Code, § 1237), we dismiss the appeal.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, defendant was convicted of sexual offenses against two victims and sentenced to 33 years in prison. A different panel of this division reversed the convictions of two of the counts and modified four of the counts to reflect convictions for violating section 288, subdivision (a), lewd and lascivious acts with a child under the age of 14. (People v. Osejo (May 31, 2017, A143092) [nonpub. opn.].) On remand, the sentence was reduced to 18 years in state prison. Defendant again appealed, contending his sentence violated section 654, and a different panel of this division affirmed. (People v. Osejo (Sept. 24, 2019, A154985) [nonpub. opn.].)
The trial court then set a Franklin hearing to allow defendant to make a record for a future youth offender parole hearing. It appears that the hearing was originally scheduled for September 2020, but it was continued multiple times and finally took place on November 4, 2022.
Defendant was present at the hearing. His counsel told the court that defendant had been returned from prison to county jail while awaiting the Franklin hearing, that defendant had spoken with the jail's mental health team, and that he thought it would be beneficial to remain in county jail for some time to participate in mental health treatment there. Defendant sought a continuance of the Franklin hearing to allow him to do so. The prosecutor objected, telling the court that he was prepared to proceed with the Franklin hearing and that defendant would have access to mental health programs in prison. Defense counsel confirmed that he was also prepared to proceed with the hearing and present evidence. Explaining that it had reviewed the relevant documents, the trial court found no good cause for a continuance, denied the request, and proceeded with the Franklin hearing.
At the conclusion of the hearing, defense counsel told the court that defendant had asked him to inform the District Attorney that he was interested in seeking a recall and reconsideration of his sentence under former section 1170.03 (now § 1172.1). Counsel explained that he would not handle the petition but said that defendant would be directing his request to the District Attorney's office.
The Franklin hearing being concluded, the trial court ordered defendant returned to the custody of the California Department of Corrections and Rehabilitation. Defendant filed a timely notice of appeal.
DISCUSSION
In his supplemental brief, defendant argues the trial court should have allowed him to remain in county jail. He states that the psychiatrist at the county jail recommended that he participate in a mental health program there and that he believed the program would be helpful.
An appeal may be taken from an order made after judgment only if it "affect[s] the substantial rights of the party." (§ 1237.) The order denying defendant's motion to continue his Franklin hearing does not clear that hurdle, and the appeal must accordingly be dismissed. (See People v. Palmer (1961) 188 Cal.App.2d. 819, 820 [dismissing appeal from order denying a defendant's motion to continue hearing on a motion for new trial].)
Even in cases where we have jurisdiction to review an order denying a continuance, that review is for abuse of discretion (People v. Strozier (1993) 20 Cal.App.4th 55, 60), and we reverse only if "the court exceeds the bounds of reason, all circumstances being considered." (People v. Beames (2007) 40 Cal.4th 907, 920.) The appellant bears the burden to establish abuse of discretion (Strozier, at p. 60), and defendant also has not met this burden. The Franklin hearing had already been delayed for more than two years, and both the parties and the court were prepared to proceed with it. We see no abuse of discretion either in holding the hearing as scheduled or in returning defendant to state prison in accordance with his sentence. Accordingly, having failed to establish that he had a right to a continuance, defendant necessarily fails to establish that the order denying the continuance adversely affected his substantial rights.
Defendant also argues that his sentence is too harsh and should be reconsidered. This issue was not before the trial court when it made the ruling on appeal, and it is not properly before us now. (See People v. Leonard (2007) 40 Cal.4th 1370, 1393 [appellate court does not consider matters not presented to the trial court].) We express no view on defendant's right to seek reconsideration of his sentence through further proceedings in the trial court.
DISPOSITION
This appeal from the November 4, 2022 order denying defendant a continuance of his Franklin hearing is dismissed.
WE CONCUR: FUJISAKI, J., PETROU, J.