People v. Hall CA4/1 ( 2024 )

Filed 10/17/24 P. v. Hall CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082979
Plaintiff and Respondent,
v. (Super. Ct. No. SCD233892)
JON HALL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Eugenia A. Eyherabide, Judge. Motion to Dismiss Appeal Denied. Reversed
and Remanded.
William D. Farber, under appointment by the Court of Appeal, for
Defendant an Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel J.
Hilton and Steve Oetting, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Jon Hall appeals the trial court’s October 2019 order rejecting a
recommendation by the Secretary of the California Department of
Corrections and Rehabilitation (CDCR) to recall his sentence and resentence
him in light of recent changes in sentencing law, pursuant to former Penal
Code section 1170, subdivision (d) (now section 1172.1).1 Because Hall
established that neither he nor the public defender’s office received notice of
the court’s denial order—and the Attorney General did not file any
opposition—we granted Hall’s motion for constructive filing of his April 2023
notice of appeal. The Attorney General now asserts this court’s order
granting constructive filing of the notice of appeal was “improvidently made”
and moves to dismiss the appeal as untimely. We deny the Attorney
General’s motion to dismiss but accept the concession that Hall is entitled to
have this matter remanded for further proceedings under section 1172.1.
BACKGROUND
In August 2013, Hall pled guilty to charges of robbery (§ 211) and
attempted robbery (§§ 211, 664), and admitted he had a prior 1999 bank
robbery conviction and a 2003 robbery conviction, which qualified as two
serious felony priors (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and two
strike priors (§§ 667, subds. (b)–(i), 1170.12, & 668).
At sentencing in February 2014, the superior court granted Hall’s
Romero2 motion and dismissed the 1999 bank robbery conviction.3 The court
1 Further undesignated statutory references are to the Penal Code.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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then imposed a total prison term of 17 years and four months, consisting of
six years on the robbery count (the middle term of three years, doubled for
one strike), 16 months consecutive on the attempted robbery count (one-third
of the middle term of eight months, doubled for one strike), and two
consecutive five-year terms for the serious felony priors.
In a letter dated October 7, 2019, the CDCR Secretary recommended
the trial court recall Hall’s sentence and resentence him under former section
1170, subdivision (d). The Secretary explained his recommendation was
based on a recent amendment of section 1385 that newly conferred the trial
court with discretion to dismiss a serious felony prior, or to strike the
punishment for a serious felony prior, imposed under section 667, subdivision
(a)(1). The letter stated the public defender was copied, along with the
presiding superior court judge and the district attorney. However, according
to Hall and the public defender’s office, neither received a copy of the letter.
By an ex parte minute order on October 21, 2019, the trial court (Judge
Eugenia Eyherabide) “decline[d] to exercise its discretion to resentence” Hall
pursuant to former section 1170, subdivision (d). The court did not state any
reasons for its decision, and neither party were present for the ruling. The
minute order directed that a copy of the order be served on the CDCR, district
3 We note the court mistakenly referred to the 1999 bank robbery
conviction as a 1998 conviction. In any event, the court explained its
dismissal of the prior strike conviction was based on the factors that (1) Hall
“never used any weapon, masks, other things . . . quite often [seen] in these
bank robberies”; (2) the prior strike was “old”; and (3) Hall had “some mental
health issues.” At the defense’s request that Hall’s mental health issues be
taken into account, the court in imposing sentence recommended Hall “be
housed at a hospital facility.”
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attorney, public defender, and Hall. But, according to Hall and the public
defender’s office, neither received notice of the ruling.
In April 2022, the public defender’s office established a unit to address
cases selected for resentencing by the CDCR pursuant to former section 1170,
subdivision (d). Between April 2022 and spring 2023, the public defender
worked with the district attorney and the trial court to identify cases
recommended for resentencing under these provisions by the CDCR that had
been made before and during the COVID-19 pandemic but “that were never
properly remedied (or where the court could not tell if the [recommendation]
letters had been addressed).” The court identified Hall’s case as was one of
these matters.
In September 2022, the trial court (Judge Lisa Rodriguez) appointed
the public defender’s office to represent Hall in the resentencing matter. At a
status conference held November 17, 2022, the court continued the recall and
resentencing hearing to January 26, 2023, stating it would be heard by video
conference so that Hall could appear by video. The People filed an opposition
to the CDCR’s recommendation, arguing against any reduction or any
significant reduction in Hall’s sentence. Hall’s counsel filed a sentencing
brief and documents in support of resentencing.
Judge Ehyherabide heard the matter on April 3, 2023. According to the
minute order, the court took the matter off calendar, finding that “[t]he court
previously ruled on this issue on 10/21/19 and does not have jurisdiction to
resentence.”
On April 28, 2023, Hall’s attorney attempted to file a notice of appeal
from “the judgment . . . entered . . . October 21, 2019.” The superior court
clerk marked the notice as “received but not filed.” (Capitalization omitted.)
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On October 24, 2023, Hall filed a motion seeking constructive filing of
his notice of appeal. The People did not file an opposition to the motion. On
November 17, we granted the unopposed motion and directed the superior
court to file the notice of appeal.
DISCUSSION
I.
The Motion to Dismiss the Appeal Is Denied
On May 31, 2024, the People filed a motion to dismiss Hall’s appeal as
untimely. They acknowledge the 2019 order denying resentencing was an
appealable order. They contend, however, that the matter became final and
the trial court lost jurisdiction to reconsider its order after 60 days had
passed. And because the court had no jurisdiction to act in 2023, its refusal
to grant relief could not have affected Hall’s substantial rights and that
denial was not an appealable order. They argue Hall’s evidence that he
lacked notice of the 2019 order was “woefully inadequate” and thus our order
granting constructive filing “was improvidently made.” They further argue
Hall should have attacked the orders directly in the trial court by means of a
petition for writ of error coram nobis.
The People are silent as to why they failed to raise any of these
challenges seven months ago, when they were served with Hall’s motion for
constructive filing. We agree with Hall that it is too late. By failing to
oppose or challenge Hall’s motion, the People have forfeited any claim that
Hall’s motion and supporting evidence were deficient or inadequate. (See
Cal. Rules of Court, rule 8.54(c) [“A failure to oppose a motion may be deemed
a consent to the granting of the motion.”]; People v. Zarazua (2009) 179
Cal.App.4th 1054, 1065 [“[T]he People are forewarned that their future
failure to file an opposition to a motion for constructive filing of an appeal
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may be deemed to be their consent to the granting of the motion. ([Cal. Rules
of Court, r]ule 8.54(c).)”].)
Even if not forfeited, we disagree that Hall failed to establish he was
entitled to relief under the constructive filing doctrine.
In support of his motion, Hall submitted his sworn declaration that he
“never knew” CDCR had recommended recall of his sentence or that the trial
court had ruled on the CDCR’s recommendation in October 2019. He also
provided sworn declarations from attorneys and staff at the public defender’s
office establishing: (1) A search of their files did not uncover the CDCR’s
recommendation letter or the court’s 2019 order. (2) The public defender’s
office “had never received notice of the . . . 2019 ruling” and first became
aware of the 2019 order in November 2022 when their special unit worked
through the COVID-19 backlog of CDCR recommendations with the trial
court. And (3) “[t]he delay in preparing the motion for constructive filing of
the notice of appeal [wa]s not due to . . . Hall’s actions, but due to counsel’s
need to gather all the evidence, review the trial court file, and to prepare the
document.”
The doctrine of constructive filing traditionally applies in criminal
cases where the appellant is incarcerated and either (1) because of special
circumstances, “the delay in filing the notice of appeal (a) has resulted from
conduct or representations of prison officials upon which the prisoner relied
and (b) has not been due substantially to fault on the part of the prisoner” or
(2) the incarcerated appellant relied on his attorney to timely file a notice of
appeal and was diligent in making sure the attorney was discharging that
responsibility, but the attorney neglected to do so. (In re Benoit (1973) 10
Cal.3d 72, 86–89.) The doctrine, however, has been applied in special
circumstances not involving the prison mailbox rule or an attorney who has
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failed to comply with a defendant’s request to file a notice of appeal. (See
People v. Olgin (1955) 137 Cal.App.2d 286, 287–289 (Olgin).)
In Olgin, the court used the constructive filing doctrine to accept a late-
filed notice of appeal when the appellant did not receive notice of the court’s
ruling until it was too late but filed the appeal immediately upon receiving
notice. (Olgin, supra, 137 Cal.App.2d at pp. 287–289.) There, the defendant
attached a notice of appeal to his petition for writ of error coram nobis and
requested the clerk file the notice of appeal if his petition was denied. (Id. at
p. 287.) When the court denied the petition, the court directed the notice of
appeal to not be filed because it was sent to the court prematurely. (Ibid.)
The court clerk sent mail advising the defendant that the notice of appeal
was not filed, but the defendant did not receive the advisal in time to file the
appeal within the deadline. (Ibid.) Denying the People’s motion to dismiss
the appeal, the court concluded that because appellant appealed immediately
upon receiving notice of the petition’s denial and the rejection of the notice of
appeal, it could be deemed constructively filed in the interest of justice. (Id.
at pp. 288–289.)
The same result obtains here. Hall’s delay in filing a notice of appeal
does not fall within the traditional constructive filing doctrine. But we are
satisfied that, like the defendant in Olgin, Hall did not receive notice of the
CDCR’s initial recall and resentencing recommendation or, more importantly,
notice of the court’s 2019 order in time to file a timely notice of appeal. In
addition to Olgin, there are other cases in which similar institutional failures
provided a basis for constructive filing so that a defendant retained
reasonable access to the courts. (See e.g., In re Vallery (1992) 3 Cal.App.4th
1125, 1127–1128 [clerk mailed notice regarding appeal dismissal to incorrect
address]; In re Fierro (1985) 169 Cal.App.3d 543, 547–548 [CDCR failed to
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manage system to allow prompt identification of inmates to receive notice of
court orders].) We thus disagree with the People that our order granting
constructive filing of the notice of appeal was improvidently made.
II.
Accepting the Attorney General’s Concession, the Matter Is Remanded for
Further Proceedings Under Section 1172.1
The Attorney General concedes that in the event we deny the motion to
dismiss, we must remand the matter to the superior court for further
proceedings under section 1172.1. We agree and accept the concession as
proper.
Former section 1170, subdivision (d)(1), authorized the trial court to
modify a defendant’s sentence upon a recommendation from the CDCR to
recall a previously imposed sentence and resentence the defendant. (People
v. McMurray (2022) 76 Cal.App.5th 1035, 1039 (McMurray); People v.
McCallum (2020) 55 Cal.App.5th 202, 205–206 (McCallum).) This is an
exception to the common law rule that the trial court loses resentencing
jurisdiction once execution of sentence has begun. (McCallum, at p. 210.)
In 2019, when the CDCR first recommended that Hall’s matter be
recalled for resentencing, former section 1170, subdivision (d)(1), did not
specifically provide a defendant with a right to counsel, to a hearing, or to a
presumption in favor of resentencing. (McCallum, supra, 55 Cal.App.5th at
pp. 206, 212–216.) But even then, courts recognized that a trial court’s
rejection of the Secretary’s recommendation without an opportunity for the
defendant to present additional information relevant to the recommendation
was an abuse of discretion. (See id. at p. 216.)
Effective January 1, 2022, Assembly Bill No. 1540 (2021–2022 Reg.
Sess.) (Stats. 2021, ch. 719, §§ 1–7) (Assembly Bill 1540) renumbered the
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recall and resentencing provisions and amended the language governing the
procedural requirements. Effective June 30, 2022, section 1170.03 was
renumbered as section 1172.1 with no change in text. (Stats. 2022, ch. 58,
§ 9; see People v. Pierce (2023) 88 Cal.App.5th 1074, 1078.)
Assembly Bill 1540 “clarified the Legislature’s intent regarding
procedural requirements and the provision’s application to ‘ameliorative laws
. . . that reduce sentences or provide for judicial discretion, regardless of the
date of the offense or conviction.’ (Stats. 2021, ch. 719, § 1(i).)” (McMurray,
supra, 76 Cal.App.5th at p. 1038.) These clarifications included “that, when
recalling and resentencing, the court ‘shall . . . apply any changes in law that
reduce sentences or provide for judicial discretion.’ ([former] § 1170.03,
subd. (a)(2).) [And w]here, as here, the CDCR recommends recall and
resentencing, the court is also now required to hold a hearing (unless the
parties otherwise stipulate), state on the record its reasons for its decision,
provide notice to the defendant, and appoint counsel for the defendant.
([former] § 1170.03, subds. (a)(6)–(8), (b)(1).) In addition, where a
resentencing request is made, there is now a presumption in favor of recall
and resentencing of the defendant, ‘which may only be overcome if a court
finds the defendant is an unreasonable risk of danger to public safety.’
([former] § 1170.03, subd. (b)(2).” (McMurray, at p. 1040.) “[T]he Legislature
sought through Assembly Bill 1540 to ‘ensure due process and equitable
application in these types of resentencing cases’ and indicate that trial courts
should accept the CDCR’s resentencing recommendations.” (Ibid.)
It goes without saying that Hall was afforded none of these procedural
protections. When a case involving a clarifying amendment, such as
Assembly Bill 1540, is on appeal, “the appropriate resolution is to reverse and
remand the matter for further proceedings in compliance with the amended
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legislation.” (McMurray, supra, 76 Cal.App.5th at p. 1039.) There is then no
need to address whether we must also reverse and remand pursuant to In re
Estrada (1965) 63 Cal.2d 740, 744. (See ibid. [“If the amendatory statute
lessening punishment becomes effective prior to the date the judgment of
conviction becomes final then, in our opinion, it, and not the old statute in
effect when the prohibited act was committed, applies.”]; McMurray, at
p. 1042 [appellate court’s decision to reverse and remand for consideration of
the CDCR’s recommendation meant there was no need to address whether to
reverse and remand pursuant to Estrada].) And because we conclude the
trial court’s 2019 order denying the CDCR’s resentencing recommendation
was an abuse of discretion, the court’s 2023 order taking the matter off
calendar necessarily falls, as it was predicated on the erroneous 2019 order.
DISPOSITION
The October 21, 2019 order declining to recall and resentence Hall is
reversed, and the matter is remanded for further proceedings pursuant to
section 1172.1.
DO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
BUCHANAN, J.
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