Opinion
F086545
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. MELVIN JOEL CRAWFORD, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 11CM1990HTA. Valerie Chrissakis, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Melvin Joel Crawford filed this appeal after a ruling by the trial court before the resentencing hearing in his case occurred. His appeal does not challenge any ruling by the court and both parties agree that the court should continue with resentencing after we have dealt with the appeal. Defendant asks us to remand the matter "to close the jurisdictional loop" so the court may continue with resentencing, while the People argue the appeal must be dismissed pursuant to Penal Code section 1237 so that defendant can pursue resentencing. We agree with the People it must be dismissed pursuant to section 1237. Accordingly, we dismiss the appeal.
All statutory references are to the Penal Code except where otherwise noted.
PROCEDURAL SUMMARY
Underlying Offenses
In 1991, defendant was convicted of forcible rape (§ 261, subd. (a)(2)) and forcible sexual penetration (§ 289, subd. (a)(1)). In 1998, defendant was convicted of failure to register as a sex offender (§ 290, subd. (g)(2)). In 2006, defendant again was convicted of failure to register as a sex offender (§ 290, subd. (a)(1)(A)).
2012 Offense and Enhancements
On January 12, 2012, the Kings County District Attorney filed an amended information charging defendant with failure to register as a transient (§ 290.011, subd. (a); count 1). It was further alleged that defendant had three prison priors (§ 667.5, subd. (b)) and two prior strikes (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
On January 13, 2012, a jury found defendant guilty on count 1 and found true the prior strike allegations. The trial court subsequently found true the three prison prior allegations.
On February 15, 2012, the trial court denied defendant's request to strike one of the prior strikes and sentenced him to 25 years to life, plus three years for the prison priors.
On November 22, 2013, our court affirmed the judgment. (People v. Crawford (Nov. 22, 2013), F064665 [nonpub. opn.].)
Resentencing Pursuant to Former Sections 1171, Subdivision (c) and 1171.1
On August 22, 2022, the trial court issued an order stating it received information from the California Department of Corrections and Rehabilitation (CDCR) that defendant was potentially eligible for resentencing pursuant to: (1) former section 1171, subdivision (c) because he may have a sentence enhancement imposed pursuant to former Health and Safety Code section 11370.2; and/or (2) former section 1171.1because he may have a sentence enhancement imposed pursuant to former section 667.5, subdivision (b) that was not imposed for a prior conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600. The court appointed counsel for defendant and set a hearing on the matter.
Section 1171 was renumbered as section 1172.7. (Assem. Bill No. 200 (2021 2022 Reg. Sess.) (Stats. 2022, ch. 58, § 11, eff. June 30, 2022).) For the sake of simplicity, we refer to the provision by its new numbering. Section 1172.7 provides that "[a]ny sentence enhancement that was imposed prior to January 1, 2018, pursuant to [s]ection 11370.2 of the Health and Safety Code, except for any enhancement imposed for a prior conviction of violating or conspiring to violate [s]ection 11380 of the Health and Safety Code is legally invalid."
Section 1171.1 was renumbered as section 1172.75. (Assem. Bill No. 200 (2021 2022 Reg. Sess.) (Stats. 2022, ch. 58, § 12, eff. June 30, 2022).) For the sake of simplicity, we refer to the provision by its new numbering. In October 2021, the Governor signed Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483). Effective January 1, 2022, the bill added former section 1171.1, later renumbered as section 1172.75, which provides: "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of [s]ection 6600 of the Welfare and Institutions Code is legally invalid." (§ 1172.75, subd. (a).)
Motions Regarding Resentencing
On February 23, 2022, defendant filed a motion for resentencing pursuant to sections 1385, 1170.126, and Senate Bill 483. The motion argued the trial court should strike one of defendant's strike priors pursuant to the Reform Act and section 1170.126. Defendant acknowledged in the motion that both strike priors were for "serious and violent" offenses. Defendant further "invite[d]" the court to strike all three of defendant's prison priors pursuant to section 1385 and Senate Bill 483.
Section 1385 provides in pertinent part, "The judge or magistrate may ... on motion of the court .., and in furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) The "power to dismiss an action," on a trial court's own motion," 'in furtherance of justice'" pursuant to section 1385, subdivision (a), "includes the lesser power to strike .. allegations" or vacate findings "relevant to sentencing, such as the allegation" or finding "that a defendant has prior felony convictions." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 524, fn. 11.)
In November 2012, California voters approved Proposition 36, the Three Strikes Reform Act of 2012 (hereafter the Reform Act). The Reform Act added section 1170.126, which allows eligible inmates who are currently subject to 25-years-to-life sentences under the former three strikes law to petition the court for resentencing. "Section 1170.126, subdivisions (a) and (b), broadly describe who is eligible to file a petition and to be resentenced. Subdivision (a) of section 1170.126 states: 'The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of [s]ection 667 or paragraph (2) of subdivision (c) of [s]ection 1170.12, whose sentence under this act would not have been an indeterminate life sentence.'" (Teal v. Superior Court (2014) 60 Cal.4th 595, 598 (italics omitted).) "Subdivision (b) of section 1170.126 states: 'Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of [s]ection 667 or paragraph (2) of subdivision (c) of [s]ection 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of [s]ection 667.5 or subdivision (c) of [s]ection 1192.7, may file a petition for a recall of sentence ...f" (Id. at p. 599 (italics omitted).)
On March 9, 2023, the prosecution filed an opposition to defendant's motion for resentencing. It agreed the trial court should strike two of defendant's prison priors pursuant to former section 1171.1, but argued that the third was ineligible because it was a sexually violent offense. The prosecution also opposed striking defendant's two prior strike convictions pursuant to section 1170.126 because defendant's strike priors were for sexually violent offenses.
On April 3, 2023, defendant then filed a confidential supplemental motion for resentencing.
On May 11, 2023, the prosecution filed a reply to defendant's supplemental motion in which it opposed striking defendant's prior strike convictions.
July 7, 2023 Hearing
On July 7, 2023, the trial court held a hearing regarding its August 22, 2022 order and defendant's motions for resentencing. !(CT 179)! It ruled defendant was ineligible for resentencing under section 1170.126 but set a resentencing hearing pursuant to Senate Bill 483.
During the hearing, defense counsel argued defendant was entitled to relief pursuant to Senate Bill 483 and requested a full resentencing hearing on the matter. The prosecution confirmed it was not objecting to relief under Senate Bill 483 but was objecting to everything else proposed by defendant, and argued one of his prison priors did not qualify for relief pursuant to Senate Bill 483 because it was for a sexually violent offense.
The trial court then scheduled a resentencing hearing pursuant to Senate Bill 483 to be held on August 22, 2023. It stated, "So if we're going to do a full resentencing hearing, everybody, we have to put it out for resentencing because it's not originally my case, and then I get a resentencing hearing and then I'll have all the arguments and things at that time."
Defense counsel next argued defendant was eligible for resentencing under section 1170.126. The prosecution contended the issue of resentencing under section 1170.126 was moot because defense counsel "even [said] in her own request that because [defendant] has a sexually-violent offense he doesn't qualify [for relief pursuant to section 1170.126]." Defense counsel argued the trial court should "ignore" the disqualification of the sexually violent offense at issue pursuant to section 1170.126 because it was a "very old" offense, but admitted there was no authority that would allow the court to do so. The court denied defendant's motion, stating it did not have discretion to ignore the offense pursuant to section 1170.126.
The trial court then confirmed with counsel that the resentencing hearing was set for August 22, 2023.
July 10, 2023 Notice of Appeal
On July 10, 2023, defendant filed a notice of appeal concerning the trial court's July 7, 2023 ruling.
August 22, 2023 Resentencing Hearing
On August 22, 2023, the trial court stated it could not proceed with the resentencing hearing because defendant filed an appeal prior to the hearing and no remittitur had issued, stating, "There's been an appeal filed in the case so the [c]ourt cannot continue with [the] resentencing hearing until that's remitted back." The court took the matter off the calendar "until such time as the remittitur comes back, ... when the [c]ourt gets jurisdiction and the [c]ourt can complete whatever hearing needs to be done at that time."
The facts of the underlying offenses are not relevant to the issues raised on appeal and are not included here.
Here, defendant does not challenge any ruling made by the trial court and contends the matter must be remanded to "close the jurisdiction loop" to allow the court to exercise its jurisdiction to resentence defendant pursuant to Senate Bill 483. The People argue the appeal must be dismissed for the court to continue with resentencing. We agree with the People, and accordingly, dismiss the appeal.
At the July 7, 2023 hearing, the trial court denied defendant's section 1170.126 motion, but noted the Senate Bill 483 issue was reserved and that defendant requested a full resentencing. It then set a hearing for the following month, on August 22, 2023, to consider full resentencing pursuant to Senate Bill 483. On July 10, 2023 (three days after the July 7, 2023 hearing and several weeks before the August 22, 2023 resentencing hearing), defendant filed a notice of appeal. On August 22, 2023, the court declined to conduct the resentencing hearing because the appeal had been filed but remittitur had not issued.
Defendant's notice of appeal lists the trial court's July 7, 2023 ruling as its basis. In his opening appellate brief, however, defendant does not challenge the court's July 7, 2023 ruling on the section 1170.126 issue or any other ruling by the court, nor does he ask our court to review the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436. Rather, defendant requests we remand the matter "to close the jurisdictional loop" so that the court may exercise its jurisdiction to consider resentencing pursuant to Senate Bill 483.
Denial of a petition for resentencing under section 1170.126 is appealable because it affects a substantial right to judicial review. (Teal v. Superior Court, supra, 60 Cal.4th at pp. 600-601.)
The People agree the appeal fails to challenge a ruling by the trial court, but rather than request remand, they argue the appeal must be dismissed pursuant to section 1237, and that upon dismissal, defendant can then pursue resentencing under Senate Bill 483 in the court below.
In a criminal action, "[a]n appeal may be taken by the defendant ... [¶] ... [¶] [f]rom any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b).)
We agree the appeal must be dismissed. As defendant does not challenge the July 7, 2023 ruling or any other ruling, or ask us to find any arguable issues, he raises no claim of error and no controversy on appeal. (See § 1237, subd. (b).) Thus, he fails to challenge an order affecting his substantial rights. (See § 1237, subd. (b).) Accordingly, we dismiss defendant's appeal. The dismissal of this appeal does not affect defendant's right to file a petition for writ of mandate to have the matter heard in the superior court.
DISPOSITION
We dismiss defendant's appeal.
[*] Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.