People v. Gray ( 2024 )

Filed 4/17/24 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085699
Plaintiff and Appellant,
(Super. Ct. No. BF160326A)
v.
SHAWN VINCENT GRAY, MODIFICATION OF OPINION
(NO CHANGE IN JUDGMENT)
Defendant and Respondent.
THE COURT:
It is hereby ordered that the opinion filed herein on April 4, 2024, be modified as
follows:
1. On page 1, delete the second paragraph below the caption and insert the
following new paragraph in its place:
“Cynthia J. Zimmer, District Attorney, and Anthony S. Yim, Deputy District
Attorney, for Plaintiff and Appellant.”
2. On page 5, delete the third full paragraph under the “DISCUSSION” heading
and insert the following two new paragraphs in its place:
“Second, the People did not question whether or how Judge Cannon had the
authority to even consider Gray’s petition. Instead, they focused on the language of
section 1026.5 regarding the calculation of maximum terms of commitment, and whether
that statute allowed for a superior court to later recalculate a maximum commitment term.
Gray’s response brief was similarly circumscribed, and he argued section 1172.75 should
be applied here because a failure to do so would unconstitutionally violate the equal
protection provisions of the state and federal constitutions.
As a result, both parties’ original briefing only addressed the substantive merits of
their underlying positions and we therefore ordered supplemental briefing.”
Except for the modification set forth, the opinion previously filed remains
unchanged.
This modification does not effect a change in the judgment.
SNAUFFER, J.
WE CONCUR:
DETJEN, Acting P. J.
MEEHAN, J
2.
Filed 4/4/24 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085699
Plaintiff and Appellant,
(Super. Ct. No. BF160326A)
v.
SHAWN VINCENT GRAY, OPINION
Defendant and Respondent.
APPEAL from orders recalling and modifying a judgment of the Superior Court of
Kern County. Gloria J. Cannon, Judge.
Cynthia J. Zimmer, District Attorney, and Anthony J. Yim, Deputy District
Attorney, for Plaintiff and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant
and Respondent.
-ooOoo-
In January 2016, respondent Shawn Vincent Gray reached a plea agreement with
the prosecution and entered no contest pleas to one count of stalking (Pen. Code,1
§ 646.9, subd. (b)) and two counts of making criminal threats (§ 422). He also admitted a
1 All undesignated statutory references are to the Penal Code.
prior strike allegation (§§ 667, subds. (c)–(j) & 1170.12, subds. (a)–(e)) and six one-year
prior prison commitment allegations (former § 667.5, subd. (b)(1) [hereafter 667.5(b)] .)
The parties further agreed that the trial court would resolve Gray’s concomitantly
entered pleas of not guilty by reason of insanity (NGI) without a jury trial and instead by
reviewing the reports of various “alienists.” It did and found Gray NGI.
During his plea colloquy, Gray acknowledged that an NGI verdict would mean
that he would be committed to the Department of Mental Health2 for a maximum term of
19 years four months, and that this commitment could also “be extended if they find
you’re not restored to sanity at a later point in time.” Gray’s counsel concurred in full,
including to the maximum commitment term. The trial court’s minutes confirm that
Gray’s no contest pleas were “entered on condition” of a “maximum term of 19 years,
4 months.” (Capitalization omitted.) At the February 2016 disposition hearing, the court
formally imposed this judgment. Gray did not appeal, nor did he ever seek collateral writ
relief, and the judgment thereafter became final.
In 2019, effective January 1, 2020, Senate Bill No. 136 (SB 136) amended
section 667.5, and limited one-year prior prison term sentencing enhancements to
sexually violent offenses. (See current § 667.5(b); Stats. 2019, ch. 590, § 1 (2019–2020
Reg. Sess.); People v. Jennings (2019) 42 Cal.App.5th 664, 681 (Jennings).) All other
one-year sentencing enhancements arising from prior prison commitments under the
previous version of that section were declared legally invalid. (Jennings, supra,
42 Cal.App.5th at p. 682.)
Two years after that, the Legislature passed Senate Bill No. 483 (SB 483), which
made SB 136’s changes to section 667.5 partially retroactive so as to include previously
final criminal judgments. (Stats. 2021, ch. 728, § 1 [“[I]t is the intent of the Legislature
to retroactively apply … [SB 136] to all persons currently serving a term of incarceration
2 Now the Department of State Hospitals (DSH).
2.
in jail or prison for these repealed sentence enhancements.” (Italics added.)].) SB 483
took effect on January 1, 2022, and its provisions were codified as section 1171.1.
(Stats. 2021, ch. 728, § 3.) Section 1171.1 was subsequently renumbered in 2022 without
substantive change as section 1172.75. (Stats 2022, ch. 58, § 12, eff. June 30, 2022.)
Notably, none of the changes to the one-year prison prior criminal sentencing
enhancements of section 667.5(b) was made applicable to a previously calculated
maximum term of commitment in NGI judgments like Gray’s.
In January 2023, presumably on Gray’s behalf,3 the Kern County Public Defender
filed a “Petition to Recall Maximum Commitment Time and Strike Legally Invalid
Enhancement” (some capitalization omitted) in the Kern County Superior Court, in which
his deputy specifically cited section 1172.75 and SB 483 in the petition’s caption.4
Other than this passing reference to SB 483 and section 1172.75 in its caption, the
“petition” (or “motion”) did not further identify a source for the superior court’s
underlying authority to recall and modify the terms of Gray’s then-final 2016 NGI
judgment. Although the “petition [was] based on the Court’s records in this case … [and]
also based on any other evidence, including testimony that may be presented at the
hearing on this matter,” no “evidence” or “testimony” was adduced at the hearing.5
3 The petition alleged that a “Mr. Innocent” was requesting the superior court to
take judicial notice of the records in Gray’s underlying 2016 judgment. Just who this
mysterious “Mr. Innocent” was, or what he had to do with Gray’s case, has never been
explained.
4 In the footers, the petition was instead labeled as a “Motion to Recall Max [sic]
Term of Commitment.” No explanation was offered for the difference.
5 In the argument portion of the petition, the deputy public defender relied on
People v. Hernandez (2005) 134 Cal.App.4th 1232 (Hernandez) and People v. Nunez
(2012) 210 Cal.App.4th 625 (Nunez). However, both those cases involved a defendant’s
direct appeal from an NGI judgment, and the question in those cases was whether the
calculation of the maximum term of commitment in NGI cases must also reflect
section 654’s limiting effects on sentences for interrelated offenses. Both courts held it
did. (See Hernandez, supra, 134 Cal.App.4th at p. 1235; Nunez, supra, 210 Cal.App.4th
at p. 628.) These two cases not only predated the subsequent statutory changes made to
3.
In a brief three-page response, the People opposed the petition without disputing
the applicability of section 1172.75 or SB 483, and instead argued that the petition should
be denied because reducing Gray’s original maximum commitment term would endanger
public safety within the meaning of section 1172.75, subdivision (d)(1). Likewise, the
People did not contest the superior court’s jurisdiction to entertain Gray’s petition in the
first instance.
In granting the petition, the court stated:6
“When the Court reads [section] 1026.5(a)(1) and it discusses the maximum
sentence is the upper term plus the enhancements, we now have the invalid prison
priors and I don’t believe the Court can impose them at this point given they’re
legally invalid. [¶] I understand [the People’s] argument … regarding the
discretion of the Court if there is a threat by the defendant. I believe that is
addressed by [section] 1026.5(b), which allows the People to file a petition to
extend the time. As indicated in [the deputy public defender’s] paperwork or her
response, even if the Court grants the [petition], the defendant is not scheduled for
release now. And while the argument submitted by the People does indicate he’s
currently still a threat, in 2029 when he would be scheduled for release, it’s
unknown if he would be a threat at that time. The People have the ability to file to
extend his commitment. [¶] For those reasons I’m going to grant the [petition] as
prayed. I will recall the sentence and reset the sentence to a maximum of 13 years,
four months.” (Italics added.)
the sentencing provisions engendered by SB 483 and section 1172.75, but they were
direct challenges to an original calculation of the maximum commitment term.
The deputy public defender also analogized to two recently enacted sentencing
modifications having nothing to do with section 667.5(b) priors, in which the Legislature
had included NGI acquittees in their scope, and where such acquittees were statutorily
entitled to petition for relief. We discuss these enactments more fully below, but we
emphasize at the outset — and throughout our discussion — that no similar legislative
modifications have ever been made with regard to SB 483 or section 1172.75. Moreover,
Gray’s petition did not mention these disparities, nor attempt to bridge the analytical gap.
6 To clarify, Judge John S. Somers found Gray NGI and imposed the original 2016
judgment. Judge Gloria J. Cannon handled the 2023 petition and recalled, recalculated,
and imposed a different maximum commitment term, which eliminated the six
section 667.5(b) one-year priors. The People’s appeal is from Judge Cannon’s orders.
4.
Thus, in granting Gray’s freestanding petition (or “motion”), the court recalled
Gray’s final 2016 NGI judgment, modified one of its underlying terms by disregarding
the six previously calculated section 667.5(b) priors, and recommitted Gray to “any
appropriate state hospital pursuant to Penal Code [section] 1026,” for a new “maximum
term of commitment [of] 13 years 4 months.” (Some capitalization omitted.)
To reiterate, neither party — nor the court — ever discussed the court’s
jurisdiction to consider the petition in the first instance, or the court’s authority to modify
the 2016 final judgment by substantially altering one of its terms, and recommitting Gray
under a different maximum term.
The People appealed, claiming the court erred by recalculating Gray’s maximum
term of commitment on two grounds: (1) the legislative changes that eliminated most
section 667.5(b) sentencing enhancements did not retroactively apply to Gray’s 2016
maximum term of commitment; and (2) because Gray continued to be a threat to public
safety, any reduced commitment recalculation was erroneous.
DISCUSSION
There are two distinct, and largely unaddressed, justiciability issues that must be
resolved at the outset before we can move on to consider the merits.
First, the People noticed their appeal as being taken from Judge Cannon’s
“decision to reduce Defendant’s sentence,” even though Gray was never sentenced.
Furthermore, Gray did not challenge the People’s appealability allegation.
Second, in their initial appellate briefing, the People did not question whether or
how Judge Cannon had the authority to even consider Gray’s petition. As a result, both
parties’ original briefing only addressed the substantive merits of their underlying
positions. We therefore ordered supplemental briefing.
As discussed below, we conclude that the People’s appeal here was statutorily
authorized — although not on the ground the People originally alleged — and we
therefore have appellate jurisdiction. However, we also find that the superior court
5.
lacked jurisdiction to entertain and consider Gray’s petition in the first instance and its
subsequent orders were void.
Because our resolution of this second issue is dispositive, we may not and do not
resolve the parties’ contentions on the underlying merits.
I. Our Jurisdiction: Appealability
As mentioned above, the People noticed their appeal as being one taken from
Judge Cannon’s “decision to reduce Defendant’s sentence.” (Italics added.)
Correspondingly, in their opening brief the People sought appellate “relief pursuant to
[section] 1238 [subdivision] (a)(6) as the trial court reduced the punishment imposed by
reducing the maximum confinement time.” (Italics added.) However, Gray was found
not guilty by reason of insanity, i.e., he was acquitted. Thus, he was never “sentenced,”
“punished,” or “confined,” because those terms all refer to judgments imposed following
a conviction, but not to NGI state hospital civil commitments.
In their opening brief, the People stated that the question of appealability was “an
issue of first impression for the courts,” but never went on to propose how we should
resolve this question, and instead simply moved on to the merits of their claims. In his
response brief, Gray also skirted whether the People’s appeal was cognizable, other than
to concede that it was “timely filed.”
As a result, we first ordered the parties to address three appealability questions:
(1) does section 1238, subdivision (a)(6) apply here;7 (2) if it does not, were Judge
Cannon’s orders otherwise appealable by the People; and (3) if not, must the People’s
appeal be dismissed? In other words, before anything else, we must first determine
whether Judge Cannon’s 2023 actions recalling Judge Somers’s 2016 final NGI
judgment, and modifying it by recalculating Gray’s maximum term of commitment, are
properly subject to a People’s direct appeal.
7 Undesignated subdivisions refer to section 1238.
6.
It is rudimentary that an appellate court has jurisdiction over a direct appeal only
where there is an appealable order or an appealable judgment. (People v. Montellano
(2019) 39 Cal.App.5th 148, 153; Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [an
appealable order or judgment “is a jurisdictional prerequisite to an appeal” (italics
added)].)
Moreover, whether or not the parties discuss it, we are required to “raise the issue
on [our] own initiative whenever a doubt exists as to whether the trial court has entered a
final judgment or other order or judgment made appealable by [statute].” (Jennings v.
Marralle, supra, 8 Cal.4th at p. 126.) Thus, the first part of our supplemental briefing
order ensued.
In criminal cases, “ ‘[t]he People’s right to appeal is statutory, and appeals that do
not fall within the exact statutory language are prohibited.’ [Citation.] The statutory
circumstances permitting the People’s appeal are specified in section 1238. [Citation.]
[Subdivision (a)(6)] permits the People to appeal from ‘[a]n order modifying the verdict
or finding by reducing the degree of the offense or the punishment imposed or modifying
the offense to a lesser offense.’ ” (People v. Saibu (2022) 81 Cal.App.5th 709, 732
(Saibu), italics added.)
Here, however, Judge Cannon did not modify the 2016 NGI verdict nor revisit the
validity of Gray’s no contest pleas and prior conviction admissions. Nor did Judge
Cannon reduce the degree of the originally charged offenses — which had none — or
modify them to a lesser offense different from those to which Gray had pled no contest in
2016. Finally, because Gray was never convicted of a criminal offense — indeed, he was
found not guilty — he was also never punished for his offenses. Thus, by its very terms,
subdivision (a)(6)’s “exact statutory language” simply does not apply here. (Saibu,
supra, 81 Cal.App.5th at p. 732.)
In their supplemental brief, the People have conceded that subdivision (a)(6) is
inapplicable. However, they respond to our second appealability question by arguing that
7.
subdivisions (a)(5) and (a)(10) instead apply and, therefore, in answer to our third
question, they contend their appeal should not be dismissed.8
In his supplemental response brief, Gray also agrees that subdivision (a)(6) does
not apply and correctly states that subdivision (a)(10) is inapt. However, he insists that
subdivision (a)(5) is also inapplicable and urges that the People’s appeal must therefore
be dismissed.
We conclude that subdivision (a)(5) does apply.
“[S]ubdivision (a)(5) permits a People’s appeal from ‘[a]n order made after
judgment, affecting the substantial rights of the people.’ An order after judgment
affecting the substantial rights of the People is generally one that affects the judgment or
its enforcement, alters the defendant’s status, or hampers the prosecution’s ability to
carry out future prosecutorial duties. [Citation.] Such cases include orders that affect the
defendant’s sentence or the timing of his release.” (People v. Hampton (2022)
74 Cal.App.5th 1092, 1100 (Hampton), italics added.)
Gray first argues that Judge Cannon’s 2023 actions in this case were actually not
“orders,” contending the court instead “recalled judgment, reset the maximum term of his
NGI commitment, and reimposed the judgment.” Just how Judge Cannon could “recall”
a judgment, “reset” a commitment term, and “reimpose” a judgment without ordering
those things to occur is not explained.
8 In their supplemental reply brief, the People have also abandoned their
subdivision (a)(10) claim. That subdivision permits the People to appeal from “[t]he
imposition of an unlawful sentence” (italics added) but no sentence was ever imposed in
this case. It seems Judge Cannon also inadvertently misspoke when she too stated that
she was recalling and “reset[ting]” Gray’s “sentence.” (Italics added.)
To reiterate, and because this error permeates both parties’ briefing despite it
being crucial to the resolution of this case, there was no sentence in this case, whether by
Judge Somers or Judge Cannon, nor was a sentence ever modified or “reset.” Period.
(See People v. K.P. (2018) 30 Cal.App.5th 331, 340 (K.P.) [“[a]n insanity acquittee is not
sentenced; he or she is committed to a state hospital for treatment”].)
8.
Gray offers no authority to support his rather odd definition of the term “order,”
and we decline to adopt it here. (See Code Civ. Proc, § 1003 [“Every direction of a court
or judge, made or entered in writing, and not included in a judgment, is denominated an
order.”].) Indeed, if these were not “orders,” it is unclear how they would possess any
legal force in the first place.
Gray next contends that Judge Cannon’s actions did not affect the People’s
substantial rights. To support this argument, he cites a host of cases where courts have
found various other kinds of orders that did actually affect the People’s rights within the
meaning of subdivision (a)(5). He then concludes that because none of these other orders
involved what happened here, that subdivision therefore does not apply. However, it is
axiomatic that cases are not authority for propositions not considered, especially when it
comes to such a negative inference. (People v. Williams (2004) 34 Cal.4th 397, 404.)9
Moreover, one of Gray’s cited authorities makes it clear that “orders entered by
the trial court and appealed by the People [that] either directly altered the judgment or
somehow directly affected the defendant’s status as it related to the judgment already
imposed,” are appealable under subdivision (a)(5). (People v. Benavides (2002)
99 Cal.App.4th 100, 105.)
Judge Cannon’s orders were “indisputably made ‘after [the 2016] judgment;’
judgment was imposed in [Gray’s] case when he was originally [committed in 2016].
[The orders] also affect[ed] the People’s substantial rights in that [they] determine[d]
whether the trial court [could] exercise its powers to recall the previous judgment and
9 Gray also makes a curiously circular argument that because four of the cases he
cites in which subdivision (a)(5) was found applicable all “involved errors,” and further,
because Judge Cannon’s orders recalling and recalculating his commitment term were
supposedly not errors, Judge Cannon’s orders were therefore not appealable under
subdivision (a)(5). In other words, if the People were to ultimately lose on the merits
regarding Judge Cannon’s orders, they also should not have been able to have appealed
the court’s orders in the first place. Needless to say, no authority is cited for this
bootstrapping syllogism.
9.
[recommit Gray]. [Citation.] Ultimately, the order[s] resulted in a substantial
modification of the original judgment. [Citation.] Thus, the trial court’s order[s]
determining [Gray] is entitled to relief qualif[y] as ‘[a]n order made after judgment,
affecting the substantial rights of the people,’ and is appealable under section 1238,
subdivision (a)(5).” (Hampton, supra, 74 Cal.App.5th at p. 1101; cf. People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1294–1295 [recalling a judgment and
resentencing after Proposition 36 was an order modifying the judgment and therefore “a
postjudgment order, which may be appealable under Penal Code section 1238,
subdivision (a)(5)”].)
We liberally construe a party’s notice of appeal (see Cal. Rules of Court,
rule 8.100(a)(2)) so long as it does not prejudicially affect the opposing party. (K.J. v.
Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882–883 [“Once a notice of
appeal is timely filed, the liberal construction requirement compels a reviewing court to
evaluate whether the notice, despite any technical defect, nonetheless served its basic
function — to provide notice of who is seeking review of what order or judgment — so
as to properly invoke appellate jurisdiction.”].) Gray has offered nothing to show how he
would be prejudiced by our finding that subdivision (a)(5) applies in this case; indeed, he
did not even challenge the People’s appeal until we ordered him to brief the issue.
We therefore find the People’s appeal from Judge Cannon’s orders is cognizable
under subdivision (a)(5), and our appellate jurisdiction is properly invoked.
II. The Superior Court’s Jurisdiction: Recalling Gray’s 2016 NGI Judgment
We next ordered supplemental briefing to address whether Judge Cannon had
jurisdiction: (1) to entertain and consider Gray’s petition/motion to recall the 2016
judgment; and (2) to then recall and modify the judgment by recalculating Gray’s
maximum term of commitment.
10.
A. Factual/Procedural Background
As discussed above, Gray’s petition did not directly address these jurisdictional
questions. Instead, the petition roughly analogized to section 1170.127, a provision
which was specifically enacted to overturn our decision in People v. Dobson (2016)
245 Cal.App.4th 310 (Dobson), superseded in part by Assembly Bill No. 103 (2017-2018
Reg. Sess.), where we had held that the changes to the Three-Strikes law engendered by
Proposition 36 did not extend to the maximum terms of commitment for NGI acquittees.
(Dobson, supra, 245 Cal.App.4th at p. 318.)10
Gray’s petition also referred to the Legislature’s extension of the provisions of
Proposition 47 — which reduced certain felonies to misdemeanors — to NGI acquittees,
and his counsel quoted: “It is the intent of the Legislature … to allow people who are
committed to the State Department of State Hospitals upon a finding of not guilty by
reason of insanity … for an offense that would otherwise fall within the resentencing
provisions of Section 1170.126 or 1170.18 of the Penal Code, as enacted by
Proposition 36 of the 2012 statewide general election or Proposition 47 of the 2014
statewide general election, to petition the original committing court for relief under those
10 Proposition 36, or the Three Strikes Reform Act of 2012, among other things
enacted section 1170.126, which specifically authorized petitions for recall and
resentencing for some third-strike defendants serving life terms based on non-serious or
non-violent felonies. (§ 1170.126, subd, (b); see People v. Yearwood (2013)
213 Cal.App.4th 161, 167–168.) Gray was not a third striker and would not have been
eligible for relief under Proposition 36 in any event. (See § 1170.126, subd. (c).)
After our decision in Dobson, supra, in 2017 the Legislature enacted
section 1170.127 (Stats. 2017, ch. 17, § 25 (Assembly Bill No. 103)), and enabled
eligible NGI acquittees to take advantage of section 1170.126 and its recall procedures.
(§ 1170.127, subd. (a) [“A person who is committed to a state hospital after being found
not guilty by reason of insanity pursuant to Section 1026 may petition the court to have
his or her maximum term of commitment, as established by Section 1026.5, reduced to
the length it would have been had Section 1170.126 been in effect at the time of the
original determination.”].) Again, however, because he is not a third-striker, Gray’s
commitment is also unaffected by section 1170.127.
11.
sections. This act is intended to nullify the holding in [Dobson, supra] (2017 Cal. Legis.
Serv. Ch. 17 § 2.).” (Italics added.)11
Gray’s petition did not mention that no similar legislative action had been
undertaken that applied the ameliorative provisions of SB 483 and section 1172.75 to
NGI acquittees in the same manner as that afforded under sections 1170.126, 1170.127,
or 1170.18, subdivision (o). Similarly, he did not discuss the relevance of the fact that
even having recently done so for other NGI acquittees — and certainly being aware of its
quite recent enactment of section 1172.75 — the Legislature had not applied that
section’s provisions to NGI commitments. To date, it still has not.
Thus, not only did Gray’s petition not explain how any of these other rather
narrowly drawn statutory enactments applied to his case but, more importantly, how they
gave the superior court jurisdiction to entertain a petition for recall relief and to then
reconsider his previously final NGI judgment. Simply put, even though he nominally
relied on them in the petition, Gray never explained how SB 483 or section 1172.75 gave
the superior court the authority to recall his 2016 final NGI judgment.
In criminal cases, “[u]nder the general common law rule, a trial court is deprived
of jurisdiction to resentence a criminal defendant once execution of the sentence has
commenced. [Citations.] Where the trial court relinquishes custody of a defendant, it
also loses jurisdiction over that defendant.” (People v. Karaman (1992) 4 Cal.4th 335,
344; People v. Velasco (2023) 97 Cal.App.5th 663, 669 (Velasco).) The only exceptions
are statutory. (See, e.g., §§ 1170, et seq., and 1172, et seq.))
11 In 2014, Proposition 47 added section 1170.18, which also created a specific
recall and resentencing procedure for those defendants who were then-serving a sentence
for the now non-felony misdemeanor offenses. (§ 1170.18, subd. (a).) Significantly, this
time NGI acquittees were included in its provisions from the outset. (See § 1170.18,
subd. (o).) Once more, however, none of Gray’s commitment offenses was among those
included in Proposition 47’s restructuring of the Penal Code, and section 1170.18,
subdivision (o) again does not apply to him.
12.
The question thus narrows to whether, absent specific enabling statutory authority,
this basic principle also deprives a superior court of jurisdiction to recall a final NGI
judgment, recalculate its maximum term of commitment, and recommit a defendant who
had been lawfully committed and transferred to the custody and control of the state’s
mental health institutions years before.
B. Legal Background
“Absent factual or evidentiary disputes, our review for subject matter jurisdiction
is de novo.” (People v. Cota (2023) 97 Cal.App.5th 318, 328–329 (Cota); Velasco,
supra, 97 Cal.App.5th at p. 669 [“ ‘When the evidence is not in dispute, subject matter
jurisdiction is a legal issue, which we review de novo.’ ”].) The underlying facts and
procedural history in this matter are not disputed.
“Once a criminal defendant has been found not guilty by reason of insanity, that
person ‘is no longer a criminal defendant, but a person subject to civil commitment.’
[Citation.] ‘The purpose of commitment following an insanity acquittal, like that of civil
commitment, is to treat the individual’s mental illness and protect him and society from
his potential dangerousness. The committed acquittee is entitled to release when he has
recovered his sanity or is no longer dangerous.’ ” (K.P., supra, 30 Cal.App.5th at
p. 338.)
“In a commitment order the trial court is required to state the ‘ “maximum term of
commitment” [meaning] the longest term of imprisonment which could have been
imposed for the offense or offenses of which the person was convicted, including the
upper term of the base offense and any additional terms for enhancements and
consecutive sentences which could have been imposed ….’ ” (K.P., supra,
30 Cal.App.5th at p. 338, italics added, quoting § 1026.5, subd. (a)(1).)
Gray does not dispute that this was exactly what Judge Somers did in 2016, and to
which he agreed, or that it was incorrect. The 19 year four month maximum NGI
commitment term was the sentence that could have been imposed had Gray been
13.
convicted of the offenses with which he was charged. However, Gray was not convicted
of anything; indeed, he was acquitted.
As discussed above, with regard to section 667.5(b) priors, SB 483 applied SB 136
“retroactively [to] the repeal of sentence enhancements for prior prison or county jail
felony terms ….” (Sen. Com. on Pub. Safety, Analysis of [SB 483] as amended March 3,
2021, at p. 1, italics added.) Noting that “[e]nhancements add time to a person’s
sentence . . . ,” the Committee on Revision of the Penal Code recommended retroactively
applying the elimination of section 667.5(b) enhancements to people currently held in
prisons and jails, to “ensur[e] that no one is serving time based on outdated rules.” (Sen.
Com. on Pub. Safety, Analysis of [SB 483] as amended March 3, 2021, at pp. 1–3, italics
added.) Thus, SB 483 was designed to be “another step forward in sustaining legislative
momentum to eliminate unjust sentence enhancements and end wasteful incarceration
spending in favor of community reinvestment.” (Sen. Com. on Pub. Safety, Analysis of
[SB 483] as amended March 3, 2021, at p. 6, italics added.)
Significantly, not only did SB 136 and SB 483 not address NGI acquittees whose
maximum terms of confinement had been calculated years before, and which had
lawfully been calculated by including the then-fully applicable 667.5(b) priors, but by
definition, an NGI acquittee is neither incarcerated, nor currently being held in a prison or
county jail.
Similarly, section 1172.75 specifically only provided affected convicted
defendants a retroactive procedural remedy for correcting any now-invalid sentencing
enhancements, even if their pre–2020 criminal judgments were final. Thus,
subdivision (b) of section 1172.75 directs the Secretary of the California Department of
Corrections and Rehabilitation (CDCR) and/or the correctional administrator in each
county to “identify those persons in their custody currently serving a term for a judgment
that includes an enhancement described in subdivision (a) and … provide the name of
each person, along with the person’s date of birth and the relevant case number or docket
14.
number, to the sentencing court that imposed the enhancement.” (§ 1172.75, subd. (b),
italics added.) Again, however, no mention is made of NGI judgments, NGI
commitments, or those acquittees who are currently in the care and custody of the DSH.
When the CDCR or the county correctional administrator sends the requisite
information included in subdivision (b) of section 1172.75 to the superior court, “the
court shall review the judgment and verify that the current judgment includes a
sentencing enhancement described in subdivision (a),” and “[i]f the court determines that
the current judgment includes an enhancement described in subdivision (a), the court
shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c), italics
added.) Once more, no provisions were made for NGI acquittees in the custody of the
DSH and who were never sentenced in the first place.
Likewise, when resentencing a defendant under section 1172.75, the superior court
is directed to “apply the sentencing rules of the Judicial Council and apply any other
changes in law that reduce sentences or provide for judicial discretion so as to eliminate
disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75,
subd. (d)(2), italics added.) In addition to striking any inapplicable one-year prison
priors, “[t]he court may consider postconviction factors, including, but not limited to, the
disciplinary record and record of rehabilitation of the defendant while incarcerated,
evidence that reflects whether age, time served, and diminished physical condition, if
any, have reduced the defendant’s risk for future violence, and evidence that reflects that
circumstances have changed since the original sentencing so that continued incarceration
is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3), italics added.)
Finally, and perhaps most importantly, subdivision (c) of section 1172.75 vests a
superior court with jurisdiction to “recall,” “review,” and “resentence” a criminal
defendant if and only if the CDCR or the applicable county administrators notifies the
“sentencing” court that section 1172.75 may apply to a particular defendant.
15.
Section 1172.75 therefore presupposes that the superior court is only authorized to
recall the cases of previously convicted defendants and, when its other preconditions are
met, it only gives the superior court jurisdiction to reconsider an otherwise final judgment
of conviction. As we have repeated ad nauseum, however, “because an insanity acquittee
is relieved of responsibility for their crimes, he or she is not convicted, and therefore may
not be sentenced.” (People v. Barner (2024) __Cal.App.5th__, __ (C095986, Mar. 26,
2024, slip opn. at p. *10) (Barner).)
To belabor the obvious, because neither SB 483 nor section 1172.75 made any
provisions for final NGI judgments or to their underlying maximum terms of
commitment, Gray’s reliance on them in his petition was, for purposes of our
jurisdictional inquiry, of no help.
C. Analysis
For our purposes, we begin with Cota, supra, a true section 1172.75 case
involving a criminal resentencing, where we observed that “ ‘[s]ubject matter
jurisdiction … is the power of the court over a cause of action or to act in a particular
way.’ [Citation.] Thus, ‘ “ ‘[t]he principle of “subject matter jurisdiction” relates to the
inherent authority of the court involved to deal with the case or matter before it.’ ” ’
[Citation.] ‘By contrast, the lack of subject matter jurisdiction means the entire absence
of power to hear or determine a case; i.e., an absence of authority over the subject
matter.’ [Citation.] In other words, ‘ “ in the absence of subject matter jurisdiction, a
trial court has no power “to hear or determine [the] case.” ’ ” (Cota, supra,
97 Cal.App.5th at pp. 328–329.)
We explained that “[i]n general, ‘ “once a judgment is rendered and execution of
the sentence has begun, the trial court does not have jurisdiction to vacate or modify the
sentence.” ’ [Citation.] However, there are many important exceptions to this general
rule. [Citations.] Although the ‘unauthorized sentence’ doctrine has sometimes been
described as one such exception [citation], our Supreme Court has recently clarified that
16.
it is not. [Citation.] The unauthorized sentence doctrine is an exception to the rules of
waiver and forfeiture and provides that an unauthorized sentence may be corrected ‘at
any time, even after a judgment of conviction has become final, and even if the judgment
has already been affirmed on appeal.’ [fn.] [Citation.] However, ‘to invoke this rule the
court must have jurisdiction over the judgment.’ ” (Cota, supra, 97 Cal.App.5th at
p. 329, italics added.)
Consequently, “ ‘a freestanding motion challenging an incarcerated defendant’s
sentence is not a proper procedural mechanism to seek relief.’ [Citation.] Rather, … ‘[a]
motion is not an independent remedy, but must be attached to some ongoing action.
[Citation.] Thus, a defendant who wishes to challenge a sentence as unlawful after the
defendant’s conviction is final and after the defendant has begun serving the sentence
must do more than simply file a motion in the trial court making an allegation that the
sentence is legally infirm.’ ” (Cota, supra, 97 Cal.App.5th at pp. 329–330.)
In Cota, the specific question was whether section 1172.75 granted the superior
court subject matter jurisdiction over a motion, brought by a pro per defendant, for
resentencing pursuant to that section. (Cota, supra, 97 Cal.App.5th at pp. 330–331.)
Consistent with decisions from other courts that had considered the question, we
concluded that “section 1172.75 does not authorize a defendant to seek resentencing on
his or her own motion or petition. Rather, the process is triggered by [the CDCR or
county custodian] identifying a defendant as a person serving a sentence that includes a
prior prison term enhancement.” (Cota, supra, 97 Cal.App.5th at p. 332; see People v.
Burgess (2022) 86 Cal.App.5th 375, 378–379, 381–382 (Burgess) [not only did the
superior court lack jurisdiction to adjudicate the defendant’s motion for resentencing, the
appellate court lacked jurisdiction to consider the defendant’s appeal of the order
denying the petition for resentencing because the defendant’s motion was merely an
improper “ ‘freestanding motion’ ” unattached to any ongoing action; “[a]ppellants’
convictions had been final for years,” and “there were no ‘ “specific statutory avenues for
17.
[appellants] to seek resentencing ….’ ”]; accord People v. Escobedo (2023)
95 Cal.App.5th 440, 447 [“section 1172.75 does not authorize … a [freestanding] petition
or a motion to strike the unauthorized enhancements”]; People v. Newell (2023)
93 Cal.App.5th 265, 268 [§ 1172.75 “ ‘simply does not contemplate resentencing relief
initiated by any individual defendant’s petition or motion’ ”]; cf. In re Cook (2019)
7 Cal.5th 439, 451 [in most cases, once the judgment has become final, there is nothing
pending to which a motion may attach]; People v. King (2022) 77 Cal.App.5th 629, 640
(King) [an admittedly unauthorized 30–year–old sentence, but “the trial court had no
jurisdiction to entertain King’s motion to vacate his sentence, and therefore this court has
no appellate jurisdiction to entertain the appeal”].)
The question before us thus narrows even further to whether the maximum term of
commitment entered in a final NGI judgment of acquittal is somehow jurisdictionally
different from a judgment of conviction in which an actual sentence was imposed. Gray
offers no authority that suggests as much, and we have found none.
Instead, Gray argues that Judge Cannon retained “continuing jurisdiction” over
Gray’s case and points out that superior courts do retain some authority to deal with
various ancillary details involving post–judgment concerns that affect NGI acquittees and
how their NGI judgments are to be carried out. Nonetheless, none of his cited case
authorities involved a modification of the judgment itself, let alone a recalculation of the
maximum commitment term.12
12 Gray also cites Code of Civil Procedure section 187, which provides in part that
“[w]hen jurisdiction is … conferred … all the means necessary to carry it into effect are
also given ….” Again, however, this begs the question. Our inquiry is whether the
superior court’s jurisdiction was “conferred” in the first place so as to even consider
Gray’s petition, not whether the court’s “means” of exercising that jurisdiction were or
were not also “given.” Any limited continuing personal jurisdiction section 1026.5 gives
to superior courts regarding NGI acquittees does not include an ability to recall a final
judgment and recalculate its original terms. If it did, Gray would presumably have cited
applicable authority, rather than referring to inapposite section 1172.75 and SB 483.
18.
Rather, Gray’s cited authorities are all founded in the quite specific statutory
provisions of section 1026.5 itself, which describe the procedures for how NGI
judgments and commitment orders are to be carried out in the future, including if and
when the acquittee’s sanity is or is not restored.
Put differently, we acknowledge that unlike criminal judgments, in NGI cases a
trial court does retain some limited jurisdiction over an acquittee’s case regarding future
hearings to determine whether his or her sanity has been restored. (See, e.g., In re Cirino
(1972) 28 Cal.App.3d 1009, 1014 (Cirino) [section 1026’s imposition of a duty on the
superior court to direct that the defendant be confined in the state hospital “carries with it
the power to make whatever orders are necessary to make the confinement effective until
such time as the court, after notice and hearing, shall find and determine that his sanity
has been restored”]; People v. Michael W. (1995) 32 Cal.App.4th 1111, 1116 [“the
committing court has continuing power to ‘make whatever orders are necessary to make
the confinement effective’ until the court determines that sanity has been restored”].)
However, this continuing jurisdiction is narrowly circumscribed by section 1026,
et seq., and none of these sections addresses the underlying maximum term of
commitment. (Cf. People v. Alvarez (2019) 32 Cal.App.5th 1267, 1274 [“Nothing in
Cirino [supra,] supports the right of a defendant committed pursuant to an NGI plea to
conduct freestanding discovery unrelated to a pending motion, petition or other
proceeding.”].)13
13 Gray’s reliance on People v. Lara (2010) 48 Cal.4th 216 (Lara) is similarly
inapt. Lara involved whether a trial court had jurisdiction to deal with a claim that an
extension of an NGI commitment could stand when the People had failed to timely meet
the statutory requirements of section 1026.5 once the original maximum commitment
term had been exceeded. (Lara, supra, 48 Cal.4th at p. 235.) However, nothing in Lara
addressed how the maximum commitment term was originally calculated or whether it
could later be modified by an NGI acquittee’s non-statutory stand-alone “petition” for
relief citing inapplicable statutory changes.
19.
“The legislative histories of both [SB 136 and SB 483] contain a clear
presupposition by the Legislature of an imposed and executed sentence.” (People v.
Rhodius (2023) 97 Cal.App.5th 38, 47 (Rhodius), rev. granted/depub. den., February 21,
2024, S283169, italics added). “The findings, costs, and ramifications of [SB 136 and
SB 483] cited during the legislative sessions presuppose inmates who are serving
additional time as a result of the sentencing enhancement under section 667.5(b). The
references to financial and familial burdens do not logically follow if a defendant is not
actually serving additional time as the result of an imposed and executed sentence
associated with a section 667.5(b) prior.” (Rhodius, supra, 97 Cal.App.5th at p. 48,
italics added.)14
To summarize, in reaction to our decision in Dobson, supra, the Legislature
responded by enacting section 1170.127, and specifically allowed NGI acquittees a
vehicle for relief that parallelled the third–striker relief provided to convicted defendants
under section 1170.126. (See People v. Steward (2021) 63 Cal.App.5th 895, 899.)
Similarly, in enacting section 1170.18, the Legislature again created a specific recall
14 The underlying issue in Rhodius, supra, was whether section 1172.75 applied
when a defendant’s prior section 667.5(b) sentencing enhancements were originally
imposed but stayed — thereby not truly “enhancing” a sentence by imposing additional
incarceration — and the Rhodius court concluded it did not. (Rhodius, supra,
97 Cal.App.5th at pp. 41–43.) Other courts to have considered this question have focused
on the meaning of the term “imposed,” and have disagreed with Rhodius. (See People v.
Saldana (2023) 97 Cal.App.5th 1270, 1276, rev. granted March 12, 2024, S283547;
People v. Christianson (2023) 97 Cal.App.5th 300, 305, rev. granted, February 21, 2024,
S283189; People v. Renteria (2023) 96 Cal.App.5th 1276, 1282–1283.) By granting
review of the issue, the Supreme Court has agreed to resolve this “imposition” issue, but
because section 1172.75 does not apply when no sentence is imposed on those priors in
the first place — whether executed or stayed — as in an NGI case, these cases are not
relevant to the question of an NGI term of commitment and the Supreme Court’s
resolution of the “imposition” issue will not assist our resolution of the jurisdictional
question presented here.
20.
procedure for NGI acquittees who were committed based on now non-felony
misdemeanor offenses. (§ 1170.18, subds. (a) & (o).)
And that is exactly the point here, because NGI acquittees were specifically
included in both those new recall provisions. No similar subdivision was included in
section 1172.75, nor was a new — perhaps section “1172.76” — enacted. The
Legislature simply did not provide a similar procedural vehicle for NGI acquittees.
“The Legislature ‘is presumed to be aware of all laws in existence when it passes
or amends a statute. [Citations.] “ ‘The failure of the Legislature to change the law in a
particular respect when the subject is generally before it and changes in other respects are
made is indicative of an intent to leave the law as it stands in the aspects not
amended.’ ” ’ ” (Barner, supra, __Cal.App.5th at p.__ (slip opn. at pp. *16-17), quoting
In re Greg F. (2012) 55 Cal.4th 393, 407.)
We digress to note in dicta that for the first time on appeal Gray has raised an
equal protection claim, alleging that any disparate treatment for recalling maximum NGI
commitment terms versus criminal conviction sentences is unconstitutional. He contends
that to deny him the recalculation benefits statutorily afforded to sentenced criminal
defendants — and to a limited group of other NGI acquittees whose maximum terms
were specifically allowed to be recalculated under other statutorily authorized
provisions — would deny him his state and federal guarantees of equal protection under
the law. (See U.S. Const., 14th Amend.; Cal. Const., art. I, § 7).
First, Gray forfeited this equal protection claim by failing to raise it in the superior
court. (Barner, supra, __Cal.App.5th at p.__ (slip opn at p. *35), citing People v.
Alexander (2010) 49 Cal.4th 846, 880, fn. 14; see People v. Rogers (2006) 39 Cal.4th
826, 854, and People v. Dunley (2016) 247 Cal.App.4th 1438, 1447.)
Second, forfeiture notwithstanding, this places the constitutional cart before the
jurisdictional horse and assumes the superior court had the authority to consider Gray’s
2023 petition in the first place — an issue that we resolve against him — and further
21.
assumes that we may consider a constitutional claim raised for the first time in a
respondent’s appellate brief where the determinative justiciability questions at issue were
never raised or developed below, and where the constitutional claim has been tardily
raised in a respondent’s brief on the merits.
Put differently, if the superior court did not have jurisdiction to entertain Gray’s
petition in the first place, our resolution of a hypothetical underlying constitutional claim
that necessarily assumes such jurisdiction would be an advisory opinion at best, and
judicial overreach as a matter of fact. We shall leave any equal protection contentions for
another day.
Ultimately, Gray’s argument that NGI acquittees should be entitled to a procedural
mechanism analogous to section 1172.75’s, which would then have given the superior
court jurisdiction to entertain his petition to challenge his maximum term of commitment,
must be addressed to the Legislature. We apply the law as written, but we do not write it.
(See People v. Superior Court (Guevara) (2023) 97 Cal.App.5th 978, 981, review
granted March 12, 2024, S283305 [“The role of the judiciary is to interpret statutes, not
to draft them.”].)
Finally, in his supplemental response brief Gray asks us for the first time to
“constructively” construe his original unauthorized superior court petition/motion “as a
remedy in habeas corpus, under which the superior court would had [sic] jurisdiction to
entertain and consider ….”
Whether Gray could have made — or in the future may make — a collateral attack
on his NGI maximum term of commitment on habeas corpus, or if and when such a claim
was — or is — ripe for review considering he has not yet been hospitalized for even the
13 year 4 month recalculated commitment term Judge Cannon imposed, are issues not
before us and were not properly developed below. We do not express any opinion in this
regard.
22.
Moreover, not only does this belated habeas corpus argument dodge the
jurisdictional question as to whether the superior court had the authority to consider the
original non-habeas petition that Gray actually did file, he provides no authority for an
appellate court to retrospectively transform the People’s direct appeal into one from a
non-existent superior court order granting a never-filed petition for habeas corpus
relief.15
The cases Gray alludes to in support of this “constructive” request involved either
direct appeals where a party’s appeal may in a reviewing court’s discretion be considered
instead as a petition for a writ of mandate or prohibition, where a writ petition in the
appellate court could be recharacterized as lying in mandate rather than prohibition, or
where a mandate/prohibition petition could instead be construed as a habeas petition.
None applies here. Gray has neither appealed nor sought any type of writ relief, either
here or below. We therefore decline his invitation.
Because neither Gray, “Mr. Innocent,” nor the Kern County Public Defender had
authority under section 1172.75, SB 136, SB 483 — or any other authority for that
matter — to file a standalone petition in this matter, the superior court also lacked
jurisdiction to consider it, let alone to then go on to modify and recalculate Gray’s 2016
maximum commitment term. (Burgess, supra, 86 Cal.App.5th at p. 381, 382 [trial court
lacked jurisdiction to adjudicate Burgess’s freestanding motion for resentencing under
§ 1172.75]; cf. King, supra, 77 Cal.App.5th at p. 634 [“ ‘once a judgment is rendered and
execution of the sentence has begun, the trial court does not have jurisdiction to vacate or
modify the sentence’ ” (italics added)].)
15 It also undermines Gray’s contention that the People’s appeal must be dismissed
because it did not neatly fall within section 1238 because the People are statutorily
entitled to appeal from a superior court’s grant of habeas corpus relief. (See § 1506.)
23.
III. Conclusion
The People’s appeal is properly before us as taken from “order[s] made after
judgment, affecting the substantial rights of the people” within the meaning of
section 1238, subdivision (a)(5). (See Hampton, supra, 74 Cal.App.5th at p. 1100.)
We hold that the superior court lacked jurisdiction to entertain Gray’s “Petition to
Recall Maximum Commitment Time and Strike Legally Invalid Enhancement” pursuant
to “Pen. Code § 1172.75 and SB 483,” because those provisions did not and do not apply,
nor did any other authority permit the superior court to consider and grant the relief Gray
sought.
As a result, the court’s orders recalling the 2016 judgment and recalculating
Gray’s maximum term of commitment were “ ‘void on [their] face.’ ” (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 200.) On an appeal from void orders, our
appellate jurisdiction is limited to reversing the superior court’s void acts. (Ibid.) We do
so here.
We emphasize that our holding is narrow because we resolve this matter at the
threshold. We may not and do not consider the parties’ other claims regarding the
underlying merits, constitutional or otherwise, nor do we opine whether Gray may have
alternative avenues for relief.
DISPOSITION
The superior court’s orders recalling and modifying the 2016 NGI judgment by
recalculating Gray’s maximum term of commitment are reversed and vacated. The court
is ordered to instead enter a new and different order denying Gray’s petition in its
entirety.
24.
The superior court clerk is directed to prepare all appropriate orders and serve the
Department of State Hospitals and any other necessary parties.
SNAUFFER, J.
WE CONCUR:
DETJEN, Acting P. J.
MEEHAN, J.
25.