People v. Morales CA4/2 ( 2021 )

Filed 12/2/21 P. v. Morales CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076844
v. (Super.Ct.No. RIF1701355)
ROGELIO VERGARA MORALES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr.,
Judge. Dismissed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley
Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Rogelio Vergara Morales and his wife, Mireya Arias,
were involved in a plan to file gender discrimination lawsuits against minority owned
hair salons and dry cleaners. Each would enter a hair salon or dry cleaner, and if Arias
was charged more, defendant, an attorney, would file gender discrimination lawsuits
against the businesses pursuant to Civil Code section 51.6, the Gender Tax Repeal Act
of 1995. Defendant harassed an attorney, Rosa Sahagun, who helped some of the
victims defend against the lawsuits and who organized a demonstration against these
gender discrimination lawsuits at defendant’s law office; he also disobeyed a
restraining order she had obtained. Defendant was convicted of 62 counts. Relevant
here, in count 51, he was convicted of a violation of Penal Code section 646.9,
subdivision (b).1
Defendant filed a first appeal. In an unpublished opinion filed on June 18, 2021,
in People v. Rogelio Morales, et al, case No. E072462 (Prior Opinion), this court
reversed numerous counts against defendant, but upheld count 51 as defendant had
raised no claim that this count should be reversed.2 This court vacated defendant’s
sentence and remanded for retrial on several counts and resentencing, including on
count 51. While the appeal was pending, defendant sent a letter to the trial court
contending the abstract of judgment filed on October 2, 2020, should be corrected
because it reflected he was convicted of a violation of section 646.9, subdivision (b),
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 On September 29, 2021, at the request of the People, we took judicial notice of
the record in defendant’s prior appeal, case No. E072462.
2
but he was charged in the information with a violation of section 646.9, subdivision (a).
The trial court entered an order that no action would be taken. Defendant now appeals
this order by the trial court arguing that the trial court’s sentence on count 51 was
unauthorized because the charging documents gave defendant notice that he was
charged only under section 646.9, subdivision (a), and not subdivision (b). We dismiss
the appeal.
FACTUAL AND PROCEDURAL HISTORY3
During a few months in 2016, defendant and Arias entered into several beauty
shops and dry cleaners in Riverside County, each receiving haircuts or dropping off
clothes for dry cleaning. If Arias paid more for her service, defendant would file a
gender discrimination lawsuit on Arias’s behalf. Sahagun was also an attorney, and she
helped some of the business owners who had been served with the gender discrimination
lawsuits. She organized a protest in front of defendant’s law office. It was held in July
2016 and there were at least 50 people present. After the protest, posts appeared on the
Facebook page for Sahagun’s law office from an account belonging to defendant. There
were approximately 60 posts from defendant on her Facebook page. In the posts,
defendant called her a fraud and a “bitch lawyer.” Defendant also posted that Sahagun
was obsessed with him and in love with him. He sent her a private message that she
seemed obsessed with him. Sahagun installed security cameras in her office and stopped
3 The facts are derived from the Prior Opinion.
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being at the office alone. She received other threatening messages from another
account which she determined was controlled by defendant.
Based on the threatening messages, Sahagun filed a restraining order against
defendant on July 27, 2016. This gave her emergency protection from defendant.
The restraining order was granted on August 30, 2016. Defendant was ordered not to
contact Sahagun in any way—either himself or through third parties. He was not to
harass her. After the restraining order was granted, Sahagun received messages on her
Facebook page from someone about defendant. It was determined that the messages
were all sent from defendant’s computer.
Defendant was charged in a first amended information on May 25, 2018, in
count 51 with violating section 646.9, subdivision (a). The prosecutor presented
count 51 to the jury as a violation of section 646.9, subdivision (b), as will be
discussed in more detail, post. On December 3, 2018, a jury found defendant had
violated section 646.9, subdivision (b) in count 51.
Defendant was sentenced to 22 years to be served in state prison on March 29,
2019. He was given a one year sentence on count 51. The amended abstract of
judgment filed on October 2, 2020, reflected the one year sentence for a violation of
section 646.9, subdivision (b).
Defendant filed his opening brief in his first appeal on April 2, 2020, and
raised several claims, but did not raise the claim that he could not be convicted of a
violation of section 646.9, subdivision (b), because the information only charged
him with a violation of subdivision (a). Defendant also filed a supplemental
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opening brief but did not raise the issue. In the Prior Opinion, we reversed most of
the convictions against defendant, but upheld the violation of section 646.9,
subdivision (b), in count 51. We vacated defendant’s sentence and ordered the
matter remanded for retrial on several counts and resentencing.
While the appeal was pending, on March 23, 2021, defendant filed a letter in
the trial court requesting that the abstract of judgment be corrected. Specifically, he
requested that it be amended because it incorrectly stated that he was convicted in
count 51 of a violation of section 646.9, subdivision (b), when he was only charged
in the information with violating section 646.9, subdivision (a). The trial court
entered an order on March 23, 2021, that “No action is to be taken.” Defendant sent
another letter to the court on March 29, 2021, stating he had submitted a request for
a correction of the trial transcript and abstract of judgment but had not received any
response. The trial court filed an order on April 7, 2021, again ordering that “No
action is to be taken.”
Defendant filed a notice of appeal on April 5, 2021. Defendant requested
that an attorney be appointed to represent him. He stated the grounds for appeal
were “Denial of request to correct abstract of judgment.” He filed a second appeal
on April 28, 2021, from the order on April 7, 2021. The grounds were “Failure to
correct fraudulent transcript and amend abstract.” Defendant contends this appeal is
authorized pursuant to section 1237, subdivision (b) (“An appeal may be taken by
the defendant from . . . any order made after judgment, affecting the substantial
rights of the party”).
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DISCUSSION
Defendant claims in this appeal that the trial court’s sentence on count 51
was unauthorized because the charging documents only gave him notice that he was
charged under section 646.9, subdivision (a), and not subdivision (b).4 Defendant
seeks to have this court reduce his sentence by four months.
Initially, defendant contended in his notice of appeal that he was appealing
the denial of a request to correct the abstract of judgment. Defendant did not
acknowledge in his notice of appeal that an appeal had already been taken. In his
opening brief in this appeal, defendant does not acknowledge that this court has
already reviewed defendant’s judgment in a prior appeal. In the Prior Opinion, we
vacated defendant’s sentence on count 51 and remanded for the trial court to retry
several counts and resentence defendant. As such, to the extent that defendant is
claiming he is only seeking to amend the abstract of judgment, the complained of
4 Section 646.9, subdivision (a) provides, “Any person who willfully, maliciously,
and repeatedly follows or willfully and maliciously harasses another person and who
makes a credible threat with the intent to place that person in reasonable fear for his or
her safety, or the safety of his or her immediate family is guilty of the crime of stalking,
punishable by imprisonment in a county jail for not more than one year, or by a fine of
not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by
imprisonment in the state prison.” Subdivision (b) provides, “Any person who violates
subdivision (a) when there is a temporary restraining order, injunction, or any other court
order in effect prohibiting the behavior described in subdivision (a) against the same
party, shall be punished by imprisonment in the state prison for two, three, or four years.”
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error on the abstract of judgment no longer exists as the sentence has been vacated. 5
The claim that the abstract of judgment must be corrected is moot.
Moreover, defendant’s argument is not actually raising a sentencing question
but rather a substantive argument seeking to have this court review his claim that
the one-year term imposed on count 51 was unauthorized because it violated his due
process right to notice. He argues due process requires that an accused be notified
of the nature and cause of the action. The information did not provide notice to
defendant that he was charged with a violation of subdivision (b) of section 646.9.
As such, sentencing him under subdivision (b) violated his due process rights. He
seeks to have his sentence reduced by four months. Such claim is not cognizable in
this second appeal.
“[T]he defendant must file the notice of appeal within 60 days after rendition
of judgment. [Citation.] . . . The purpose of the requirement of a timely notice of
appeal is, self-evidently, to further the finality of judgments by causing the
defendant to take an appeal expeditiously or not at all.” (People v. Mendez (1999)
19 Cal.4th 1084, 1094.) Moreover, if a defendant fails to raise a claim in a timely
appeal, which was “(1) . . . ripe for decision by the appellate court at the time of the
previous appeal; (2) there has been no significant change in the underlying facts or
applicable law; and (3) the defendant has offered no reasonable justification for the
delay” the claim in any subsequent appeal is waived. (People v. Senior (1995) 33
5 We further note there was no error on the abstract of judgment as the jury
convicted defendant of violating section 646.9, subdivision (b).
7
Cal.App.4th 531, 537-538.) The rationale underlying the use of the waiver rule is
based on “various policy considerations, including the state’s ‘powerful interest in
the finality of its judgments’ [citation], the protection of ‘scarce judicial resources’
[citation], and the recognition that ‘piecemeal litigation prevents the positive values
of deterrence, certainty, and public confidence from attaching to the judgment.’ ”
(Id. at p. 538.)
At the time the parties discussed the jury instructions after trial, the trial court
noted that the elements of section 646.9, subdivision (b), had been met and that the
prosecutor should prepare a jury verdict that set forth the elements. The prosecutor
admitted that only section 646.9, subdivision (a), was charged in the information.
Defendant objected. Nonetheless, the jury was given a verdict form that permitted
it to find defendant guilty of section 646.9, subdivision (b). It entered a verdict
finding him guilty of subdivision (b) of section 646.9. The trial court sentenced
defendant to one year on count 51 on March 29, 2019.
Defendant filed his opening brief in the first appeal on April 2, 2020, and did
not raise the claim that he could not be convicted of a violation of section 646.9,
subdivision (b) because the information only charged him with a violation of
subdivision (a). He provides no excuse for failing to previously raise the issue, and
in in fact ignores that a prior appeal had been filed and adjudicated. There has been
no factual or legal change since the prior appeal. The factual basis for the claim
was the same when defendant filed his first appeal. Defendant cannot now raise the
issue that should have been raised in the first appeal. The claim is waived.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
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