People v. Phelps CA4/2 ( 2023 )

Filed 6/27/23 P. v. Phelps 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Appellant, E078698
v. (Super.Ct.No. INF059428)
ALEX ALLEN PHELPS, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge.
Reversed.
Michael A. Hestrin, District Attorney, and Sophia Choi, Deputy District Attorney,
for Plaintiff and Appellant.
Britton Donaldson, under appointment by the Court of Appeal, for Defendant and
Respondent.
1
INTRODUCTION
A trial court granted defendant and respondent Alex Allen Phelps’s petition for
dismissal of all charges against him filed pursuant to Penal Code1 section 1203.4b. The
People appeal, and in its opening brief contend that the court had no authority to grant the
petition since defendant failed to meet the statutory requirements for relief.
On May 1, 2023, on our own motion, we requested supplemental briefing on
whether the amendment to section 1203.4b, subdivision (a)(1), which expanded relief and
became effective on September 29, 2022, had any effect on the appeal. The parties
submitted supplemental briefing as requested, which we have considered in deciding this
case.
We agree with the People that defendant has failed to meet the statutory
requirements for relief and reverse.
FACTUAL AND PROCEDURAL BACKGROUND2
Defendant’s son (the child), who was two and one-half months old, was left in
defendant’s exclusive care and custody, while the child’s mother left to check on their
other child. When she returned, the child was not breathing. They took the child to the
hospital, where she died as a result of blunt-force trauma to the head. Defendant initially
denied knowing how the child sustained a head injury, but then claimed the injury may
1All further statutory references will be to the Penal Code unless otherwise
indicated.
2Because defendant pled guilty pursuant to a plea agreement, the factual
background is derived from the People’s request for disposition/ruling filed on August
18, 2021.
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have occurred when she rolled off the couch and onto the carpet. During an autopsy, the
medical examiner observed multiple retinal hemorrhages, a subdural hematoma, bruises
and swelling to the brain, and a bruise on the child’s right eyelid. The medical examiner
opined that the injuries were consistent with being struck or thrown against a soft object.
On December 1, 2008, the People filed an information charging defendant with
murder (§ 187, subd. (a), count 1) and assault resulting in the death of a child under the
age of eight (§ 273ab, count 2). On August 12, 2010, the People filed a first amended
information charging defendant with voluntary manslaughter (§ 192, subd. (a), count 1)
and four counts of infliction of cruel and inhuman corporal punishment on a child
(§ 273d, subd. (a), counts 2-5). Pursuant to a plea agreement, defendant pled guilty to all
five counts. The court sentenced him to 16 years four months in state prison, in
accordance with the terms of the agreement.
On July 29, 2021, defendant filed a petition for dismissal pursuant to section
1203.4b, alleging that he successfully participated in a conservation camp program called
“Firefighter Training Program” from September 18, 2020, to the present. He also
requested early termination of parole. Defendant attached a personal letter to the court
stating that he served as an institutional firefighter from November 9, 2019, to September
18, 2020, with the California Rehabilitation Center Fire Department. He also stated that
he was currently enrolled in the CAL-FIRE Ventura Training Center (VTC) Fire
Academy in Camarillo, California. Defendant asked the court to dismiss his case so that
he could obtain his Emergency Medical Technician (EMT) license. He attached
documentation showing he was currently participating in the Firefighter Training and
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Reentry Program at the VTC. A letter from Parole Agent Angelica Garcia indicated
defendant was accepted into the voluntary 18-month program on November 16, 2020,
and a letter from an administrative specialist at VTC also said he started in November
2020. The documentation also included a letter from Fire Captain Mikeal Gates, who
worked at the California Rehabilitation Center in Norco, stating that defendant was
assigned to his institutional firefighter program on November 9, 2019, and defendant was
“paroled in good standing from” the program on September 4, 2020. Defendant also
attached copies of various certificates he earned.
The People opposed the petition. On August 20, 2021, the court held a hearing,
and the prosecutor pointed out that one of the requirements of section 1203.4b is that the
Secretary of the California Department of Corrections and Rehabilitation (CDCR) certify
to the court that a defendant has successfully completed the required program, before the
court exercises its decision on whether to grant or deny the petition. The prosecutor
further argued that based on the facts of the case and the nature of what defendant pled to,
it was not in the interests of justice to grant the petition. Defense counsel asserted that
defendant had completed an 18-month program and took advantage of various programs
in custody. The court noted that the form submitted by defendant said he was asking to
terminate his parole, and it was unsure about doing that. The People responded that
perhaps it would be better for defendant to request dismissal after completing his parole,
and further noted the facts of the case were egregious. The court denied the petition.
On November 9, 2021, defendant filed another petition for dismissal pursuant to
section 1203.4b, alleging that he successfully participated in a conservation camp
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program called “Firefighter Training Program” from September 18, 2020, to October
2021, and stating he had been released from custody. He attached the same
documentation from the prior petition. The People again opposed the petition.
On or about November 10, 2021, the superior court clerk sent a notice of filing of
petition for dismissal (Pen. Code, § 1203.4b) and request for certification to the
California Rehabilitation Center in Norco, stating that defendant had filed a petition. The
notice further stated: “Pursuant to statute, when a petition is filed, the court is required to
provide a copy of the petition to the responsible authority to obtain certification of the
petitioner’s participation [in] fire camp. CDCR is then required to certify whether the
petitioner successfully participated in the incarcerated individual conservation camp and
has been released from custody. [¶] Please provide certification of the petitioner’s
participation to the court indicated above by: 11/24/2021.”
On November 30, 2021, the court continued the hearing on the petition to obtain
the certification from the CDCR.
On December 16, 2021, a certification of participation of fire camp form was filed.
It was signed by a CDCR Classification and Parole Representative and stated that
defendant “[d]id not participate in the above-listed fire camp.” The fire camp listed was
the California Rehabilitation Center in Norco.
Defendant moved to continue the hearing two more times, and it was eventually
held on February 7, 2022. That day, a memorandum from Fire Captain Mikeal Gates,
dated January 25, 2022, was filed, in which he answered a series of questions from the
defense attorney. Gates’s responses included that defendant was incarcerated and
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participated in the institutional firefighter program from November 9, 2019, until
September 18, 2020, “when he paroled.” Gates explained the difference between the
institutional firefighter program and fire camp, stating that institutional firefighters
protect prison infrastructure, and are available to respond to any incident in the county if
requested, whereas fire camp firefighters only respond to wildfires, flooding, and forest
restoration. Gates also stated that defendant responded to a wildland fire and several fires
within the prison grounds in Norco.
After reviewing the evidence and the law, the court stated: “Although I will say
that [defendant] does not fit within the specific letter of the law, I do believe he clearly
fits within the spirit of the law. There is apparently a difference between one who is an
institutional firefighter, meaning that they actually staffed the fire department within the
institution and respond to fires within the institution that are structural fires, and someone
who is part of the California Conservation Corps [sic] fire—conservation camp
firefighting wildfires—or wildland firefighters. [¶] In [defendant’s] position, he was part
of the institutional firefighters, but he also responded to wildland firefighters and was
trained in that as well. . . . [¶] . . . [¶] To say that [defendant] does not fall within the
spirit of the law by virtue of him having the institutional firefighter training versus the
wildland firefighter training, I think puts form before substance, and I don’t think that
would be the equitable and the just resolution in this particular case.”
The People acknowledged the certificates and letters defendant submitted in
support of his petition and commended him for all he had done, but argued that he was
not eligible for relief since he did not participate in the specific program required by the
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statute. Defense counsel stated that defendant participated in 10 months of training “in
good faith as an incarcerated firefighter” with the expectation that he would have his
record expunged for purposes of being employed, after he was paroled. Defense counsel
added that defendant was already discharged and had completed 18 months of training at
VTC, which was a California Conservation Camp program. The court reiterated that
defendant fell within the spirit as opposed to the letter of the law. Thus, it granted the
requested relief and ordered dismissal of the underlying charges.
DISCUSSION
Defendant Failed to Establish His Compliance with the Statutory Requirements
The People argue that the trial court was without authority to exercise its
discretion and grant defendant’s petition for dismissal pursuant to section 1203.4b since
he did not meet the statutory requirements for relief. In its opening brief, the People
contend that (1) defendant did not successfully participate in a California Conservation
Camp program while incarcerated, and (2) the Secretary of the CDCR (the Secretary) did
not provide the required certification. Defendant contends the court properly found that
he came within the spirit of the law and that a reversal of the court’s order would be a
violation of his Equal Protection rights. In its supplemental brief, the People
acknowledge that section 1203.4b was amended to include relief for a defendant who
participates in an institutional firehouse, and that defendant likely now qualifies.
However, before the trial court may exercise its discretion and grant a dismissal, the
Secretary must certify his successful participation. In his supplemental brief, defendant
contends he has successfully participated in an approved institutional firehouse program,
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and we should affirm the court’s order; however, if certification from the Secretary is
required, this court should remand the case to the trial court to obtain the certification.
Although we recognize defendant’s outstanding efforts, we agree with the People that the
Secretary must certify defendant’s participation in the required program. Thus, we will
reverse the order.
A. Principles of Statutory Interpretation
“Where a question of statutory interpretation based on undisputed facts is
presented, we conduct an independent review of the statute in question.” (People v.
Paige (2020) 51 Cal.App.5th 194, 200.) “We have long recognized that the language
used in a statute or constitutional provision should be given its ordinary meaning, and
‘[i]f the language is clear and unambiguous there is no need for construction, nor is it
necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of
the voters (in the case of a provision adopted by the voters).’ [Citation.] To that end, we
generally must ‘accord[ ] significance, if possible, to every word, phrase and sentence in
pursuance of the legislative purpose,’ and have warned that ‘[a] construction making
some words surplusage is to be avoided.’ ” (People v. Valencia (2017) 3 Cal.5th 347,
357 (Valencia).)
B. Section 1203.4b
Assembly Bill No. 2147 (Assem. Bill 2147), approved by the Governor on
September 11, 2020, became effective January 1, 2021, and added section 1203.4b to the
Penal Code. When enacted, this section provided: “If a defendant successfully
participated in the California Conservation Camp program as an incarcerated individual
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hand crew member, as determined by the Secretary of the Department of Corrections and
Rehabilitation, or successfully participated as a member of a county incarcerated
individual hand crew, as determined by the appropriate county authority, and has been
released from custody, the defendant is eligible for relief pursuant to this section.”
(Former § 1203.4b, subd. (a)(1).) Section 1203.4b was subsequently amended and now
provides, “If a defendant successfully participated in the California Conservation Camp
program as an incarcerated individual hand crew member, as determined by the Secretary
of the Department of Corrections and Rehabilitation . . . or participated at an
institutional firehouse, as determined by the Secretary of the Department of Corrections
and Rehabilitation, and has been released from custody, the defendant is eligible for
relief pursuant to this section.” (§ 1203.4b, subd. (a)(1) (italics added), amended by Stats
2022, ch. 771, §16 (Assem. Bill No. 160), eff. Sept. 29, 2022.)
“If the requirements of this section are met, the court, in its discretion and in the
interest of justice, may permit the defendant to withdraw the plea of guilty or plea of nolo
contendere and enter a plea of not guilty [and] the court shall thereupon dismiss the
accusations or information against the defendant and the defendant shall thereafter be
released from all penalties and disabilities resulting from the offense of which the
defendant has been convicted, . . .” (§ 1203.4b, subd. (c)(1).)
C. Defendant Did Not Meet the Statutory Requirements of Section 1203.4b
In its opening brief, the People argue that defendant did not participate in a
California Conservation Camp program while incarcerated, and the Secretary did not
certify his successful participation in such, as required by the statute. However, in its
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supplemental brief, the People acknowledge that the amendment to section 1203.4b
expands relief to a defendant who participates at an institutional firehouse and thus likely
includes defendant. Even so, the Secretary must determine and certify defendant’s
participation in such program. We agree. Defendant has not established that he met the
statutory requirements, and it is even unclear from his petition and attachments how he
was attempting to satisfy them.
Defendant’s petition, filed on November 9, 2021, alleged that he successfully
participated in a conservation camp program called “Firefighter Training Program” from
September 18, 2020, to October 2021, and stated that he had been released from custody.
The personal letter he attached to his petition requested the dismissal of his case under
Assembly Bill 2147 and asserted that he was “currently . . . enrolled in the CAL-FIRE
Ventura Training Center (VTC) Fire Academy.” He attached a letter from Parole Agent
Angelica Garcia, indicating he was released on parole on September 18, 2020, and
confirming his participation at VTC. Garcia stated that VTC was a voluntary, 18-month
firefighter training and reentry program that emphasized rehabilitation. She further stated
that defendant was accepted into that program on November 16, 2020. From Garcia’s
description, the VTC Fire Academy does not appear to be a California Conservation
Camp program that defendant participated in while incarcerated; rather, it was a
voluntary training program, which defendant participated in while he was on parole.
Moreover, the participation dates he alleged on his petition (September 18, 2020, to
October 2021) do not match the acceptance date indicated by Garcia (November 16,
2020).
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Defendant asserted in his letter, but not on his petition, that he served as an
institutional firefighter from November 9, 2019, to September 18, 2020. We note that
these dates also do not match the dates he alleged on his petition. Defendant attached a
letter from Fire Captain Mikeal Gates from the California Rehabilitation Center in Norco,
stating that defendant was assigned to his institutional firefighter program on November
9, 2019, while serving his sentence there. Notably, at the time defendant filed his
petition, section 1203.4b, in relevant part, only applied to defendants who “participated in
the California Conservation Camp program as an incarcerated individual hand crew
member, as determined by the Secretary of the Department of Corrections and
Rehabilitation.” The evidence did not clearly establish that the California Rehabilitation
Center in Norco was a California Conservation Camp program.
Furthermore, as to the statutory requirement that a defendant “participate[] in the
California Conservation Camp program as an incarcerated individual hand crew member,
as determined by the Secretary of the Department of Corrections and Rehabilitation”
(§ 1203.4b, subd. (a)(1)), the only evidence of certification by the CDCR showed that
defendant did not participate in a fire camp. The superior court clerk sent a request for
certification to the California Rehabilitation Center in Norco, stating that defendant had
filed a section 1203.4b petition and asking the CDCR to certify to the court whether he
successfully participated in the “incarcerated individual conservation camp.” In
response, the CDCR representative filed a Certification of Participation of Fire Camp
form, which stated that defendant “[d]id not participate in the above-listed fire camp.”
(Italics added.) The camp listed was the California Rehabilitation Center in Norco. With
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regard to the expanded relief under the amended statute, the evidence appears to
demonstrate that defendant participated in an institutional firefighter program while he
was incarcerated. However, section 1203.4b requires that such participation be
“determined by the Secretary of the Department of Corrections and Rehabilitation”
(§ 1203.4b, subd. (a)(1)), and there has been no attempt to have the Secretary certify
defendant’s participation in an institutional firefighter program.
In sum, “courts must look first to the words of the statute, giving effect to their
plain meaning. If those words are clear, we may not alter them to accomplish a purpose
that does not appear on the face of the statute or from its legislative history.” (In re Jerry
R. (1994) 29 Cal.App.4th 1432, 1437; see Hennigan v. United Pacific Ins. Co. (1975) 53
Cal.App.3d 1, 7 [“We may not disregard or enlarge the plain provisions of the statute, nor
may we go beyond the meaning of the words used when they are clear and
unambiguous.”].) Section 1203.4b does not require interpretation since it is not
ambiguous. (Valencia, supra, 3 Cal.5th at p. 357.) Defendant’s petition and supporting
documentation did not clearly allege or establish that he satisfied the requirements of the
statute. Specifically, the petition alleges that he successfully participated in a
conservation camp program, but the evidence does not establish such. Conversely, the
petition does not allege that he participated at an institutional firehouse, although the
evidence appears to show that he did; however, the Secretary has not determined or
certified such participation. Since the requirements were not met, according to the
statutory terms at the time of the hearing, the court erred in granting him relief.
(§ 1203.4b, subd. (c)(1) [“If the requirements of this section are met, the court, in its
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discretion and in the interest of justice, may permit the defendant to withdraw the plea of
guilty . . . .” (Italics added)].)3 Since the petition in this case does not allege that
defendant participated at an institutional firehouse, and the Secretary has not determined
such, the statutory requirements have still not been met.
We acknowledge defendant’s contention that the denial of his petition, based on
the People’s argument, would violate his right to equal protection. He asserts that he
participated in the California Conservation Camp at VTC after he was released on parole,
while noting that only individuals who participate in a fire camp while incarcerated are
entitled to relief under section 1203.4b. Defendant concedes that he did not raise an
equal protection argument below. We conclude he forfeited his equal protection claim by
failing to raise or develop it below. (People v. Hartshorn (2012) 202 Cal.App.4th 1145,
1151.) Although we have discretion to address the claim, we decline to do so, especially
since defendant alleged in his supplemental brief that he qualifies for relief based on his
participation in an institutional firehouse program.
We note the statute provides that “[a]ny denial of relief pursuant to this section
shall be without prejudice.” (§1203.4b, subd. (a)(2).) Therefore, we will reverse the
court’s order, and defendant may file another petition if he so chooses.
3 In light of our conclusion, we decline to further address defendant’s claims that
the court properly found he came within the spirit of the law.
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DISPOSITION
The order granting defendant’s section 1203.4b petition is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
RAPHAEL
J.
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