Opinion
C087519
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. JEANNETTE MARIE TURNER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NCR41247)
Defendant Jeannette Marie Turner appeals from the denial of her motion to vacate a prior conviction on the basis of newly discovered evidence pursuant to Penal Code section 1473.7 (unless otherwise stated, statutory section references that follow are found in the Penal Code). Defendant contends that the trial court failed to consider her motion because it erroneously believed it lacked jurisdiction. We agree, and we will reverse the court's order denying her motion for lack of jurisdiction.
FACTS AND PROCEEDINGS
In 1996, a jury found defendant guilty of one count of perjury by false affirmation for aid, in violation of section 118, that occurred on June 28, 1995. The trial court sentenced her to three years in state prison. Defendant appealed her conviction, and this court affirmed the judgment on January 28, 1998. On April 23, 1998, the remittitur issued.
On February 13, 2018, defendant filed a motion in propia persona to vacate her 1996 conviction pursuant to the newly enacted section 1473.7, arguing that newly discovered evidence proved her innocence. The People opposed the motion, contending that defendant did not raise newly discovered evidence and the motion was untimely under section 1473.7, subdivision (c). The trial court appointed counsel to represent defendant. At the hearing on her motion, defense counsel averred to the court that he did not believe that the court retained jurisdiction to hear the section 1473.7 motion because defendant had previously filed a direct appeal and a coram nobis petition. He stated, "There has been evidence that has been provided by [defendant] that looks like she has the grounds for a reversal on her conviction and I don't believe that this Court has the jurisdiction to hear that matter." The court asked counsel whether it was his opinion that "there is no basis upon which to seek the relief granted." Counsel clarified that he did not believe that the trial court had the ability to grant relief because it lacked jurisdiction to hear the motion. Based on this representation, the court denied the motion.
DISCUSSION
I
Request for Judicial Notice
As a preliminary matter, the Attorney General requests that we take judicial notice of the appellate record in our prior decision in People v. Turner (Jan. 28, 1998, C025922) [nonpub. opn.]. While our opinion in that matter is part of the augmented record on appeal, the transcripts in that case were not considered by the trial court below and are irrelevant to our decision on appeal. Accordingly, we deny the Attorney General's request. (See People v. Preslie (1977) 70 Cal.App.3d 486, 493.)
II
Motion to Vacate Judgment
Defendant contends the trial court erred in denying her relief on the erroneous basis that it lacked jurisdiction to consider her motion under newly-enacted section 1473.7. We agree.
Section 1473.7, subdivision (a), provides, "A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence" for one of two reasons, including that "[n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice." (§ 1473.7, subd. (a)(2).) A motion to vacate based on newly discovered evidence "shall be filed without undue delay from the date the moving party discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section." (§ 1473.7, subd. (c).) All motions filed under section 1473.7 "shall be entitled to a hearing." (§ 1473.7, subd. (d).) The moving party has the burden of establishing by a preponderance of the evidence the grounds for relief. (§ 1473.7, subd. (e)(1).) We review de novo the pure question of law of whether the trial court had jurisdiction to hear the motion to vacate under section 1473.7. (See People v. Tapia (2018) 26 Cal.App.5th 942, 950.)
Defendant argues the trial court had jurisdiction to consider the motion because the statute implicitly "confers jurisdiction on a trial court by requiring any motion to receive a hearing." The Attorney General concedes this point, agreeing that "[t]o the extent that counsel may have believed the trial court did not have jurisdiction, his understanding was erroneous." Nevertheless, the Attorney General argues that the trial court did not deny the motion because it erroneously believed it lacked jurisdiction but considered the motion on the merits and properly denied it because the motion was untimely and defendant failed to present new evidence of her innocence. The transcript of hearing does not contain any discussion of the merits of defendant's motion. The Attorney General claims, however, the court implicitly denied defendant's motion on the merits based solely on the fact the trial court stated it was denying the "relief requested." This argument is not well taken. It belies the record of the hearing in which defense counsel expressly advised the court he believed there were "grounds for a reversal on her conviction" but did not believe the trial court had "the jurisdiction to hear the matter." It also belies the fact that defense counsel premised his claim that the trial court lacked jurisdiction on defendant having previously filed a direct appeal and a coram nobis petition, not a belief the motion was untimely or unsupported. The court specifically asked counsel to clarify whether it was his opinion that there was "no basis upon which to seek the relief granted," and counsel mistakenly averred that the court lacked "any jurisdiction at all to hear [the motion]." The court replied, "[I]f that is your statement on the record then I am going to deny the relief requested." It is clear, based on this exchange, that the trial court did not consider defendant's motion on the merits. Rather, the court erroneously relied on defense counsel's mistaken representation that it lacked jurisdiction to hear defendant's motion. Due to this error, defendant did not receive the hearing on her motion to vacate to which she is statutorily entitled, which was prejudicial. (See § 1473.7, subd. (d).) Accordingly, we must reverse and remand.
Because we agree with defendant that the trial court erred in concluding it lacked jurisdiction to hear her motion, we need not reach her secondary claim that defense counsel rendered ineffective assistance.
DISPOSITION
The order denying defendant's motion to vacate her conviction is reversed. On remand, the trial court is directed to hold a hearing on the merits of defendant's motion to vacate her conviction in accordance with section 1473.7.
/s/_________
HULL, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
HOCH, J.