Opinion
D072873
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO CHAIDEZ, Defendant and Appellant.
Alex David Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Heather M. Clark, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD181666 ) APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Dismissed. Alex David Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Heather M. Clark, Deputy Attorney General, for Plaintiff and Respondent.
Roberto Chaidez appeals from an order filed August 10, 2017, denying a request for a parole consideration hearing under Proposition 57. We dismiss the appeal.
BACKGROUND
A. Prior Conviction
In 2006, a jury found Chaidez guilty of two counts of residential burglary of inhabited dwelling homes (Pen. Code, §§ 459, 460), each with a Penal Code section 667.5, subdivision (c)(21) allegation, rendering it a "violent felony" for enhancement purposes; one count of possession of stolen property (Pen. Code, § 496, subd. (a)); and one count of taking and driving a vehicle without the driver's permission (Veh. Code, § 10851, subd. (a)) with a Penal Code section 666.5, subdivision (a) allegation (repeat offender). The jury found true Chaidez had two strike priors, two serious felony priors, and three prison priors. The court sentenced Chaidez under the "Three Strikes" law to an indeterminate term of 60 years to life in prison.
B. Proposition 57
In 2016, California voters passed Proposition 57, "The Public Safety and Rehabilitation Act." As relevant here, Proposition 57 added section 32 to article I of the California Constitution (section 32). Section 32 provides:
"(a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law:
"(1) Parole Consideration: Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.
"(A) For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.
"(2) Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements.
"(b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety."
C. Current Appeal
In 2017, Chaidez filed in the superior court a request for a parole consideration hearing under section 32. The court denied Chaidez's request, stating:
It appears that, prior to filing his request in the superior court, Chaidez sought review through the California Department of Corrections and Rehabilitation's Nonviolent Parole Review Process; his request was denied on the ground that his offense is not nonviolent.
"Per Proposition 57 . . . , the California Department of Corrections and Rehabilitation (CDCR) must implement regulations allowing a state prisoner convicted of a nonviolent felony to be considered for parole after serving the full term of their primary offense.
"Defendants are not entitled to an immediate reduction of their sentences by the Court pursuant to Proposition 57. In this case, the Defendant was convicted of a violation of Penal Code section 459 with the allegations of Penal Code sections 460, 462(a) [denial of probation] and 667.5(c)(21) found true. These allegations make this crime a [s]erious [f]elony as Defendant was convicted of [f]irst [d]egree [r]esidential [b]urglary and a [v]iolent [f]elony as it was found true that the dwelling was inhabited during the commission of the offense. Because Defendant was convicted of a violent felony, Proposition 57 does not apply to this case. Any motion or petition regarding the application of Proposition 57 to the [D]efendant's case is denied."
Chaidez timely filed a notice of appeal. Appointed counsel filed a Wende brief claiming, without discussion, the order is appealable under Penal Code section 1237, subdivision (b), as an order after judgment affecting Chaidez's substantial rights. We requested the parties to submit supplemental briefing addressing whether the appeal should be dismissed as being taken from a nonappealable order. In response, Chaidez's appointed counsel submitted a "letter brief under People v. Wende" that failed to specifically address appealability, but that identified the following issues: "Did the superior court lack jurisdiction to grant appellant's request for relief under Proposition 57? If so, does this mean that the superior court's order is not appealable as a postjudgment order affecting appellant's substantial rights?" The Attorney General submitted a letter brief arguing that the appeal should be dismissed as it was taken from a nonappealable order.
People v. Wende (1979) 25 Cal.3d 436.
Chaidez also submitted a brief on his own behalf, asserting various arguments on appeal. Because we have determined that the appeal must be dismissed for lack of jurisdiction, we do not address the merits of these arguments.
DISCUSSION
A judgment or order is not appealable unless a statute expressly provides for an appeal. (Teal v. Superior Court (2014) 60 Cal.4th 595, 598 (Teal).) A criminal defendant may appeal a final judgment of conviction or any order made after judgment that affects his or her substantial rights. (§ 1237.) An appeal from a nonappealable order should be dismissed. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1208 (Turrin).)
In People v. Dynes (2018) 20 Cal.App.5th 523, 528 (Dynes), the Court of Appeal concluded that an order denying a defendant relief under Proposition 57 was not appealable and dismissed the appeal. In that case, the defendant, who had been sentenced for a second strike offense in 2014, sent the superior court a letter that the court treated as an ex parte request for resentencing, modification of sentence, reclassification, or recalculation of credits pursuant to Proposition 57. (Id. at pp. 526-527.) The court noted that section 32 directs CDCR to adopt regulations to implement the early parole eligibility provision; section 32 does not authorize the trial court to entertain motions for resentencing. (Id. at p. 527.) As such, the court denied relief and directed the defendant to seek relief through CDCR once it adopted the regulations to implement the Act. (Ibid.) The defendant filed a notice of appeal and requested a certificate of probable cause, which was not ruled on. (Ibid.) After seeking briefing from the parties, the appellate court dismissed the appeal for lack of jurisdiction. (Id. at p. 528.) The court noted that the right to appeal is statutory, and a criminal appeal may be taken only from a final judgment of conviction or from "any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b); see Dynes, at p. 528.) In contrast to resentencing initiatives, Proposition 57 did not create a right to be resentenced or provide a remedy by way of postjudgment motion to file a petition for resentencing. (Dynes, at p. 528.) The order denying the motion for resentencing did not affect defendant's substantial rights because the court lacked jurisdiction to modify his sentence under section 32. (Dynes, at p. 528, citing Turrin, supra, 176 Cal.App.4th at p. 1204 [" ' "[G]enerally, a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun. [Citation.]" [Citations.] There are few exceptions to the rule.' "].) The Dynes court concluded that, because the superior court lacked jurisdiction to grant defendant's request for relief under section 32, the order is not an appealable order; it dismissed the appeal. (Dynes, at p. 528.)
Unlike the defendant in Dynes, who requested resentencing under Proposition 57, Chaidez requested that the superior court order a parole eligibility hearing, arguing he is entitled to early parole as a nonviolent offender. Proposition 57's section 32 did not create a procedure in the courts to direct early parole consideration or a corresponding right for a prisoner to petition the court for relief to direct parole or parole consideration; it only directed CDCR to enact regulations to implement parole eligibility hearings to determine the propriety of early release. Thus, the rationale in Dynes remains applicable to this case. The superior court's August 10, 2017 order denying Chaidez's Proposition 57 request neither involved a final judgment of conviction, nor affected appellant's substantial rights, since the court did not have jurisdiction to modify his sentence or direct parole consideration under section 32. (See Turrin, supra, 176 Cal.App.4th at p. 1204.) Because the order was not an appealable postjudgment order, the appeal should be dismissed. (Dynes, supra, 20 Cal.App.5th at p. 528; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726.)
Even if we were to entertain Chaidez's appeal, we would conclude that (1) Chaidez has failed to establish any arguable issue for reversal based on our review of the entire record; and (2) Chaidez was represented by competent counsel on this appeal. --------
DISPOSITION
The appeal is dismissed.
GUERRERO, J. WE CONCUR: O'ROURKE, Acting P. J. DATO, J.