Opinion
F079587
09-15-2020
THE PEOPLE, Plaintiff and Respondent, v. MARCO CESAR ARAUJO, Defendant and Appellant.
Kristin Traicoff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CMS4435)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Kristin Traicoff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Snauffer, J.
-ooOoo-
In a criminal case, "a notice of appeal ... must be filed within 60 days after rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rule 8.308, subd. (a).) If the 60th day is a Saturday, is the time extended, by operation of law, to the next day that is not a holiday? We conclude the answer is yes.
Undesignated rule references are to the California Rules of Court.
BACKGROUND
Charges
The Kings County District Attorney charged Marco Cesar Araujo with two crimes: Carjacking (Pen. Code, § 215, subd. (a); count 1) and driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a); count 2). A prior conviction for violating Vehicle Code section 496d, subdivision (a) was alleged as both a prior vehicle theft related conviction (§ 666.5) and a prison prior (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code.
Trial Evidence
The facts are not in dispute. The victim's pickup truck was stolen from outside his home. While driving around town the next day, he noticed the pickup parked in front of a store. He stopped to investigate.
While the victim was looking inside the pickup, Araujo "appeared ...." The victim told him, "[T]hat's my truck." Araujo "became aggressive," "pushed" the victim, "hit [him] in the chest," and then "got in the truck and left."
The victim went home and reported the incident to law enforcement. His truck was returned "[t]wo days later." Araujo was apprehended a few weeks later.
Verdict and Sentence
The jury found Araujo guilty of both counts. The court accepted his admission to both enhancement allegations. He was sentenced to serve six years in prison calculated as follows: Five years for carjacking plus one year for the prior prison enhancement.
A five-year sentence was imposed on count 2 but stayed pursuant to section 654.
Judgment was pronounced on May 7, 2019. The notice of appeal was filed on Monday, July 8, 2019.
This court took "judicial notice of the 2019 calendar and that July 6, 2019, was a Saturday."
DISCUSSION
There are two issues on appeal but only one in contention. One, is Araujo entitled to relief pursuant to Senate Bill No. 136, 2019-2020 Reg. Sess. § 1 (SB 136)? Two, is the appeal timely? The People concede the former but dispute the latter.
The notice of appeal in this case was filed 62 days after judgment was rendered. As we shall explain, we conclude it was timely. We also accept the People's concession regarding SB 136.
I. The Appeal Is Timely
"[T]he filing of a timely notice of appeal is a jurisdictional prerequisite. 'Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.' [Citations.] The purpose of this requirement is to promote the finality of judgments by forcing the losing party to take an appeal expeditiously or not at all." (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113 (Silverbrand).)
The Judicial Council is vested with the power to promulgate appellate rules of procedure. (Cal. Const., art. VI, § 12.) At present, in a criminal case a "notice of appeal ... must be filed within 60 days after the rendition of the judgment or the making of the order being appealed." (Rule 8.308, subd. (a).) "The policy of appellate courts, of course, is to hear appeals on the merits and to avoid, where possible, forfeitures of substantial rights on technical grounds. The interest of the state that justice be done in criminal cases reinforces an appellant's claim that his appeal be considered on the merits." (People v. Casillas (1964) 61 Cal.2d 344, 346.)
"The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded." (Code Civ. Proc., § 12.) "If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is ... extended to ... the next day that is not a holiday." (Code Civ. Proc., § 12a, subd. (a).)
These statutes apply "to ... all ... provisions of law providing or requiring an act to be performed on a particular day or within a specified period of time, whether expressed in this or any other code or statute, ordinance, rule, or regulation." (Code Civ. Proc., § 12a, subd. (b); rule 8.60; see Silverbrand, supra, 46 Cal.4th at p. 111, fn. 3 ["The Code of Civil Procedure governs the computation of time under the" California Rules of Court]; People v. Malone (1931) 213 Cal. 406, 407-410 [holding identical statutes applicable to criminal appeals].) In this context, Saturdays and Sundays are legal holidays. (Code Civ. Proc., §§ 12a & 135; Gov. Code, § 6700, subd. (a)(1).)
In this case, judgment was pronounced on May 7, 2019. Araujo filed his notice of appeal on July 8, 2019. As the People correctly note, by excluding the first day, and excluding the last, 62 days pass between these two dates. The 60th day was Saturday July 6, 2019. Because Saturday and Sunday are considered holidays for this purpose, the next day that was not a holiday was Monday, July 8, 2019. Accordingly, the notice of appeal was timely.
II. Senate Bill No. 136 Applies Retroactively
The remaining issue is whether SB 136 applies retroactively. Araujo argues it is retroactive and his one-year sentence enhancement is no longer valid. The People concede the issue.
SB 136 amended Penal Code "section 667.5, subdivision (b), to eliminate the one-year prior prison term enhancement for most prior convictions. [Citation.] An exception, not applicable here, is made for a qualifying prior conviction on a sexually violent offense .... [¶] Because SB 136 became effective before [Araujo's] judgment became final, we agree with the parties that the amended law applies to him retroactively." (People v. Reneaux (2020) 50 Cal.App.5th 852, 876.) He is thus entitled to relief.
Because the imposed sentence was not otherwise the maximum possible, the trial court must resentence Araujo. (People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) We express no opinion on the proper sentence upon remand.
DISPOSITION
The Penal Code section 667.5, subdivision (b) enhancement is stricken. We remand to the trial court with directions to resentence Araujo.