Opinion
G039792
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. ANGEL MIGUEL SANDOVAL, Defendant and Appellant.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Tony Rackaukas, District Attorney, John R. Maxfield, Deputy District Attorney, for Plaintiff and Respondent.
Not to be Published in Official Reports
Defendant Angel Miguel Sandoval contends the court denied him access to the court to oppose an anti-gang injunction. But he did not show his access to the court had been impaired. We affirm.
FACTS
The district attorney filed a complaint in October 2007 seeking preliminary and permanent injunctions against the Varrio Viejo criminal street gang and its alleged members, including defendant. (See generally People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1108-1109 [anti-gang injunctions].) It later filed an ex parte application for an order to show cause re preliminary injunction. According to the supporting declarations, defendant was an active Varrio Viejo member, had claimed membership in the gang, and was known to his fellow members as "Silent." Defendant, a state prison inmate, was personally served with the summons, complaint, ex parte application, and declarations.
One week later, and two weeks before the preliminary injunction hearing, defendant filed a document entitled "Petition for Removal." He stated, "I MIGUEL SANDOVAL AM TO APPEAR IN YOUR COURTROOM ON NOV 16 2007 8:00 AM ON CASE NUMBER 07CC19689[.] HOWEVER I AM IN CUSTODY AT CALIFORNIA CORRECTIONAL CENTER P.O. BOX 2500 SUSANVILLE, CA. 96127-2500[.] I WOULD LIKE TO BE PRESENT FOR THAT COURT DATE[.] [¶] THANK YOU."
The court acknowledged defendants petition and similar requests from other defendants at the hearing, but issued the preliminary injunction. Its order noted, "An incarcerated indigent defendant in a bona fide civil action threatening his interests has the federal and state due process and equal protection rights to access to the courts to defend against such an action. However, he does not have an absolute right to be personally present at the civil proceedings. ([ Yarbrough ] v. Superior Court (1985) 39 C[al.]3d 197, 200 [Yarbrough]; Payne v. Superior Court (1976) 17 Cal.3d 908, 923 [Payne].) It is left to the trial courts discretion to determine what type of access to the courts is necessary and appropriate under the circumstances. [Citations.] [¶] Based on the foregoing authorities, the applications of the jail and prison inmates to attend the hearing on the preliminary injunction are denied on the following grounds: [¶] No applicant has asserted or demonstrated that he is indigent and therefore unable to obtain access to the courts through counsel. Nor has any pro per inmate submitted, attempted to submit, or indicated that he is unable to submit, any written opposition to the issuance of the preliminary injunction, which this court would have considered, had it been received. [¶] In addition, as to the state prison inmates ([including defendant]), the request is denied on an additional ground: Because the preliminary injunction is an interim order, and because neither prison inmate has shown that, based on an upcoming release date, he would likely be affected by this order, neither has shown that the preliminary injunction threatens his interests."
Defendant did not answer the complaint. The court entered his default on November 27, 2007.
Defendant filed a notice of appeal on January 2, 2008. He indicated the "Proceeding appealed from" was the "DEN[IAL] TO BE PRESENT FOR PROCEEDINGS EVEN AFTER I WROTE THE COURTS OF BEING INCAR[C]ERATED," "DUE PROCESS VIOLATION," and "INEFFECTIVE ASSIST[ANCE] OF COUNSEL." He stated, "I WAS [I]NCAR[C]ERATED ON A DIFFERENT MATTER DURING THESE PROCEEDINGS W[H]ICH THE COURTS KNEW ABOUT. I WROTE LETTERS BOTH TO THE JUDGE AND D.A. STATING I WANTED TO BE PRESENT ON 11/16/07 AND WAS ENTER[E]D FOR DEFAULT." He declared under penalty of perjury he had no income or bank deposits and requested the appointment of counsel on appeal.
The clerk of the superior court sent a notice of default to defendant. It informed him he had violated court rules by failing either to deposit a filing fee for his appeal or apply for a fee waiver. It later sent him a second notice of default because he failed to designate a clerks record or reporters transcript.
Defendant finally filed a form notice designating record on appeal. In the space for designating the reporters transcript, defendant wrote "I WAS NEVER GIVEN THE CHANCE TO BE PRESENT FOR THE PROCEEDINGS EVEN AFTER THE COURT[]S KNO[W]LEDGE OF MY INCARCERATION ON A DIFFERENT MATTER."
The court held a default prove-up hearing on January 25, 2008. After the hearing, it entered default judgment against defendant and issued a permanent injunction against him.
Appellate Defenders, Inc., filed a request in this court. It asked us not to dismiss defendants appeal for his court rule violations. It also asked for defendant to be appointed counsel on appeal. We invited an informal response. The district attorney asked us to dismiss the appeal, but also stated it would not oppose a trial court motion to vacate the default judgment due to excusable neglect. (See Code Civ. Proc., § 473.) We declined to dismiss the appeal, but deemed defendants notice of appeal to be from the order granting the permanent injunction, and appointed appellate counsel for defendant.
All further statutory references are to the Code of Civil Procedure.
Our previous order deeming the notice of appeal to be from the order granting the permanent injunction was improvident. (See First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960-961 [notice of appeal hopelessly premature when filed before ruling on default judgment]; see also Cal. Rules of Court, rule 8.104(e)(1), (2) [limits on saving premature appeals].) The notice of appeal was timely, however, from the order granting the preliminary injunction. We will construe it to be from that order. This construction renders the appeal moot. (See City of Oakland v. Superior Court (1982) 136 Cal.App.3d 565, 569 [final judgment dissolves preliminary injunction]; see also 6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies, § 402, p. 344 [any "appeal from the order granting the preliminary injunction is rendered moot [by a permanent injunction] and may be dismissed"].) We exercise our discretion to reach the merits because the issue of defendants right to appointed counsel or other access remedy may recur in any subsequent trial court proceedings — for example, in proceedings to vacate the judgment on statutory or equitable grounds, or to modify or enforce the permanent injunction. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 480 [reaching merits of moot appeal because "`there may be a recurrence of the same controversy between the parties" if court later modified the order].) We express no opinion on the likelihood or propriety of any such proceedings.
DISCUSSION
The parties agree with the trial court on a general proposition: indigent prison inmates have a constitutional right to court access to defend against civil actions threatening their rights. (See Payne, supra, 17 Cal.3d at p. 919; see also Yarbrough, supra, 39 Cal.3d at p. 200.) "[T]he United States Supreme Court has long recognized a constitutional right of access to the courts for all persons, including prisoners." (Payne, at p. 914.)
But an indigent prisoner has no automatic right to personal appearance in court to defend a civil action. (Payne, supra, 17 Cal.3d at pp. 926-927 ["Nor have we established that indigent prisoners . . . may secure . . . the right to appear personally"]; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 794 (Wantuch) ["Nor may a prisoner ordinarily compel his or her appearance in court"].)
Defendant bears the initial burden of showing his access to court has been impaired. Factors include whether he is indigent, whether a continuance is feasible, "whether [his] interests are actually at stake in the suit," "whether an attorney would be helpful to him under the circumstances of the case," and whether he "plans to defend the action and an adverse judgment would affect his [or her] present or future property rights." (Payne, supra, 17 Cal.3d at. p. 924.)
Even if defendant shows his access has been impaired, this "does not necessarily mandate a particular remedy." (Payne, supra, 17 Cal.3d at p. 923.) The court has discretion to fashion an appropriate remedy. (Id. at pp. 924-925.) "Remedies to secure access may include: (1) deferral of the action until the prisoner is released [citation]; (2) appointment of counsel for the prisoner [citations]; (3) transfer of the prisoner to court [citation]; (4) utilization of depositions in lieu of personal appearances [citations]; (5) holding of trial in prison [citation]; (6) conduct of status and settlement conferences, hearings on motions and other pretrial proceedings by telephone [citation]; (7) propounding of written discovery; (8) use of closed circuit television or other modern electronic media; and (9) implementation of other innovative, imaginative procedures . . . ." (Wantuch, supra, 32 Cal.App.4th at pp. 792-793, fn. omitted.)
At every step, the trial court retains discretion to assess and accommodate the right to access. (Payne, supra, 17 Cal.3d at pp. 925-926; Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1485-1486 (Apollo).) "The trial court determines the appropriate remedy to secure access in the exercise of its sound discretion. [Citations.] The exercise of the trial courts discretion will not be overturned on appeal `unless it appears that there has been a miscarriage of justice." (Wantuch, supra, 32 Cal.App.4th at p. 794.)
Defendant contends the judgment should be reversed and default vacated because the court deprived him of access. Defendant has not shown the court abused its discretion by finding his access to court had not been impaired.
The district attorney does not oppose a reversal, but it too fails to show any abuse of discretion. The parties have not requested a stipulated reversal. (See § 128, subd. (a)(8); see also Ct. App., Fourth Dist., Div. Three, Internal Operating Practices & Proc., V.C., Stipulated requests for reversal.)
First, defendant did not show he was indigent. (See Payne, supra, 17 Cal.3d at p. 923.) He did not claim indigency in his letter requesting to attend the preliminary hearing. The court noted defendant had not "asserted or demonstrated that he is indigent and therefore unable to obtain access to the courts through counsel." The only document indicating defendants indigency was the notice of appeal that he filed after entry of default. These notices are filed with the trial court for procedural purposes. (See Cal. Rules of Court, rule 8.100(e) [superior court clerk duties].) Trial judges are not charged with reviewing their contents. (Cf. Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 497 [court not "expected to take any action based" on reporters transcript designation].) The court had no duty to review the notice of appeal, consider it evidence of defendants indigency, and sua sponte vacate the entry of default.
Second, defendant did not show he "plan[ned] to defend the action . . . ." (Payne, supra, 17 Cal.3d at p. 924.) In his letter, he asked only to attend the hearing. He did not dispute the complaints allegations — for example, by claiming he is not a Varrio Viejo gang member. Nor did he send any subsequent letter disputing the complaint. The court noted this as well: "Nor has [defendant] submitted, attempted to submit, or indicated that he is unable to submit, any written opposition to the issuance of the preliminary injunction, which this court would have considered, had it been received."
Courts will not disturb default judgments entered in the absence of an opposition to the complaint just because the defendant is an indigent prisoner. (See Goodhue v. Tureaud (1979) 100 Cal.App.3d 205, 211-212.) "Payne does not reach so far as to encompass those instances where, as here, in spite of completed valid service of initiation of civil proceedings against him and other completed written notice during the proceeding, a litigant-defendant, even though incarcerated and indigent, takes no steps appropriately calculated to protect or suggesting a desire to protect his interest prior to suffering a default judgment . . . ." (Goodhue, at pp. 211-212.) "[T]he constitutional rights of [court access] are subject to waiver through failure to timely assert them and . . . as in the case of ordinary civil litigants, they may be deemed to be waived or abandoned if not adequately preserved." (Id. at p. 212.) Defendants only request below was to attend the preliminary injunction hearing. He did not answer or otherwise dispute the complaint, waiving any lack of access.
In Payne, the incarcerated defendant answered the complaint. (Payne, supra, 17 Cal.3d at p. 911-912.) He was denied release to attend trial. (Id. at p. 912.) The opinion states a default judgment had been entered against the defendant (ibid.), but this must have been a judgment after an uncontested trial. (Compare § 585 [default judgment] with § 594 [uncontested trial]; see Heidary v. Yadollahi (2002) 99 Cal.App.4th 857,863-864 [explaining difference between default judgment and judgment after uncontested trial].)
Finally and most fundamentally, the record shows defendant had access to the court. The court received and considered his letter requesting to attend the preliminary injunction hearing. While defendant now takes exception to the entry of default and default judgment, he never made any such protest to the court. He did not send any subsequent letters to the court concerning the entry of default or default judgment. In sum, defendant has had access to the court to oppose the complaint and challenge the entry of default and default judgment, but he did not avail himself of it. The court did not abuse its discretion by finding he was not entitled to an access remedy.
At oral argument, we invited the parties to file supplemental briefs on whether defendants opposing civil anti-gang injunctions have a right to court-appointed counsel. Defendant concedes our courts have found no such right exists. (See Iraheta v. Superior Court (1999) 70 Cal.App.4th 1500, 1514-1515 ["Due process does not require that defendants in civil actions to abate the conduct of criminal street gangs as a public nuisance be given legal counsel at public expense"].) Defendant instead asks us to exercise our discretion to appoint counsel on remand, relying upon Apollo, supra, 167 Cal.App.4th 1468. But Apollo does not provide authority for us to do that. In Apollo, the court reversed a judgment entered against an indigent prisoner who had "vigorously pursued his claim" (id. at p. 1484) and remanded for the trial court to determine whether any access remedy was appropriate. (Id. at p. 1487.) The Apollo court did not itself appoint counsel on remand. Neither will we. We leave it to the trial courts discretion to reassess defendants access in the event of further proceedings below.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
SILLS, P. J.
RYLAARSDAM, J.