People v. Neufeld CA2/1

Filed 4/27/21 P. v. Neufeld CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B303857
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. MA065160)
v.
ROGER HENRY NEUFELD,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Dismissed.
Jenny M. Brandt, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
A jury found Roger Henry Neufeld guilty of second degree
robbery based on his theft of a candy bar from a convenience
store and his subsequent interactions with the store’s sales
associate. (Pen. Code, § 211.)1 In a bifurcated proceeding, the
trial court found that Neufeld suffered two prior serious and/or
violent felonies pursuant to section 667, subdivision (d) and
suffered a prior serious felony pursuant to section 667,
subdivision (a)(1). The trial court dismissed one of Neufeld’s
prior “strikes” pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero), and sentenced Neufeld to 11
years in state prison.
We affirmed the trial court’s judgment and the Supreme
Court denied Neufeld’s petition for review in 2016. (People v.
Neufeld (Sept. 16, 2016, B265952) [nonpub. opn.], review denied
Dec. 14, 2016, S237938 (Neufeld I).)
In 2018—long after the judgment in this matter became
final2—the Legislature enacted and the Governor signed Senate
Bill No. 1393 (S.B. 1393), which amended sections 667 and 1385
to give a trial court discretion that it did not have before January
1, 2019 to strike certain prior serious felony conviction
1 Further statutory references are to the Penal Code.
2 “ ‘[F]or the purpose of determining retroactive application
of an amendment to a criminal statute, a judgment is not final
until the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed.’ ” (People v. Vieira (2005) 35
Cal.4th 264, 306.) “A petition for writ of certiorari seeking review
of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely” if
filed with the clerk of the United States Supreme Court “within
90 days after entry of the order denying discretionary review.”
(U.S. Supreme Ct. Rules, rule 13.)
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enhancements. (Stats. 2018, ch. 1013, §§ 1, 2.) In August 2019,
Neufeld filed a petition for resentencing under S.B. 1393.
Concluding that it did not have jurisdiction to modify the
sentence, the trial court denied Neufeld’s petition. Neufeld raises
two contentions on appeal. First, he argues that the Legislature
intended S.B. 1393 to apply retroactively regardless of the
finality of a conviction. Second, he argues that treating
defendants whose convictions are final different from those whose
convictions are not yet final for purposes of applying S.B. 1393
violates the equal protection clause of both the United States and
California Constitutions. We disagree with Neufeld’s contentions
and will dismiss the appeal.
BACKGROUND
On January 19, 2015, Neufeld entered a 7-Eleven store.
(Neufeld I, supra, B265952, at p. 2.) As a sales associate watched
him, Neufeld grabbed a candy bar and left the store without
paying for it. (Id. at pp. 2-3.) The sales associate followed
Neufeld out of the store and called to him. (Id. at p. 3.) Neufeld
returned, initiated a confrontation, and left without paying for
the candy bar. (Ibid.) After the confrontation ended, the sales
associate called police, who arrested Neufeld. (Ibid.)
On June 18, 2015, a jury found Neufeld guilty of second
degree robbery. (Neufeld I, supra, B265952, at p. 4.) “Pursuant
to Romero, supra, 13 Cal.4th 497, Neufeld asked the court to
strike his two prior felony convictions . . . .” (Ibid.) The trial
court agreed to dismiss one prior conviction, but not both. (Ibid.)
“On July 30, 2015, the court sentenced Neufeld to 11 years in
state prison—the midterm of three years, doubled to six years
pursuant to sections 1170.12 and 667, plus an additional five
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consecutive years for his prior . . . conviction pursuant to section
667, subdivision (a)(1). Neufeld timely appealed.” (Id. at p. 5.)
We affirmed the trial court’s judgment in an unpublished
opinion on September 16, 2016.3 (Neufeld I, supra, B265952, at
p. 21.) The Supreme Court denied Neufeld’s petition for review
on December 14, 2016. (People v. Neufeld, review denied Dec. 14,
2016, S237938.)
In 2018—almost two years after the Supreme Court denied
Neufeld’s petition for review—the Legislature enacted and the
Governor signed S.B. 1393. The legislation amended sections 667
and 1385 to give trial courts discretion to strike prior serious
felony conviction enhancements that they did not have before
January 1, 2019. (Stats. 2018, ch. 1013, §§ 1, 2.)
In 2019, Neufeld petitioned the trial court for resentencing
under S.B. 1393. Concluding it lacked jurisdiction to consider
Neufeld’s petition, the trial court denied the petition.
We granted Neufeld’s request to file a belated notice of
appeal seeking review of the trial court’s order.
DISCUSSION
A. Retroactive application of S.B. 1393
Neufeld argues in the first instance that the trial court had
jurisdiction to consider his petition. Neufeld’s argument centers
around the proposition that the Legislature intended for S.B.
1393 to apply to all cases retroactively, not just those with
3 One member of the panel found “no evidence that Neufeld
used force to take the candy bar,” and would have “modif[ied] the
judgment to reduce the conviction to the lesser included crime of
theft, and direct[ed] the court to resentence Neufeld accordingly.”
(Neufeld I, supra, B265952 (dis. opn. of Rothschild, J. at pp. 1, 4).)
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judgments that were not yet final as of the statute’s effective
date.
Relying on In re Estrada (1965) 63 Cal.2d 740, other courts
have concluded that S.B. 1393 applies to cases not yet final as of
January 1, 2019. (See, e.g., People v. Garcia (2018) 28
Cal.App.5th 961, 973; also People v. Alexander (2020) 45
Cal.App.5th 341, 345 (Alexander).) Quoting People v. Woods
(2018) 19 Cal.App.5th 1080 (Woods) and referring to the “Estrada
rule,” Neufeld argues that “[w]here, as here, an ‘amendment
provides discretion to impose a lesser sentence, and because there
is nothing in the amendment to suggest the Legislature intended
it to apply prospectively only, the presumption that the
amendment applies retroactively prevails.”
Estrada does not apply here.
In Estrada, the Supreme Court explained that “[w]hen the
Legislature amends a statute so as to lessen the punishment it
has obviously expressly determined that its former penalty was
too severe and that a lighter punishment is proper as punishment
for the commission of the prohibited act. It is an inevitable
inference that the Legislature must have intended that the new
statute imposing the new lighter penalty now deemed to be
sufficient should apply to every case to which it constitutionally
could apply. The amendatory act imposing the lighter
punishment can be applied constitutionally to acts committed
before its passage provided the judgment convicting the defendant
of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745,
italics added.) In Woods, the court applied the Estrada
presumption to remand a case for resentencing where the
judgment was not yet final. (Woods, supra, 19 Cal.App.5th at p.
1091 [“the amendment to subdivision (h) of . . . section
5
12022.53 . . . will take effect before the judgment in this case is
final”]; Alexander, supra, 45 Cal.App.5th at p. 345 [“the Woods
defendant’s case was on direct appeal [citation]–i.e., his
conviction was not yet final”].)
Moreover, the Penal Code itself undermines Neufeld’s
argument, declaring that “[n]o part of it is retroactive, unless
expressly so declared.” (§ 3.) The Supreme Court’s guidance
about section 3 and specifically in the context of Estrada are no
more helpful for Neufeld: “We have described section 3 . . . as
codifying ‘the time-honored principle . . . that in the absence of an
express retroactivity provision, a statute will not be applied
retroactively unless it is very clear from extrinsic sources that the
Legislature . . . must have intended a retroactive application.’ ”
(People v. Brown (2012) 54 Cal.4th 314, 319.) “Estrada is today
properly understood, not as weakening or modifying the default
rule of prospective operation codified in section 3, but rather as
informing the rule’s application in a specific context by
articulating the reasonable presumption that a legislative act
mitigating the punishment for a particular criminal offense is
intended to apply to all nonfinal judgments.” (Id. at p. 324,
italics added.)
Nevertheless, Neufeld argues that the S.B. 1393’s
legislative history commands retroactive application to final
judgments.
Specifically, Neufeld quotes from a bill analysis that points
out that the mandatory enhancement at issue “has resulted in
mandatory additional terms for thousands of individuals” and
that “[t]his rigid and arbitrary system has meted out
punishments that are disproportionate to the offense, which does
not serve the interests of justice, public safety, or communities.”
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The quoted language continues, “SB 1393 . . . restore[s] the [trial]
court’s discretion, in the interest of justice, to strike a five-year
sentence enhancement for each prior serious felony conviction on
a person’s record, when a person is currently convicted of a
serious felony.” Neufeld relies on the bill analysis’s reference to
defendants “currently convicted” to support his retroactivity
argument. Neufeld also cites the Legislature’s goal of reducing
the prison population to save money. Finally, Neufeld argues
that he is the type of person the Legislature was considering
when it enacted S.B. 1393; that his sentence is unjust because he
“received an 11-year sentence for stealing a [candy bar] under
circumstances where the force was described by [the dissenting
opinion on direct appeal] as an ‘invitation’ to fight.”
“[I]n the absence of a clear legislative intent to the contrary
statutory enactments apply prospectively.” (Evangelatos v.
Superior Court (1988) 44 Cal.3d 1188, 1193-1194; accord In re
E.J. (2010) 47 Cal.4th 1258, 1272.) We agree with our colleagues
in Division Six, who considered the same language when they
decided Alexander, supra: “these propositions are couched in
such ‘broad, general language’ that we are reluctant to infer any
retroactive intent from them.” (Alexander, supra, 45 Cal.App.5th
at p. 346.) We reject Neufeld’s arguments.
B. Equal Protection
Neufeld also argues that the equal protection clauses of the
United States and California Constitutions require that S.B.
1393 be applied to defendants whose judgments are final and
nonfinal alike.
As an initial matter, Neufeld argues that an equal
protection analysis should subject the applied distinction between
retroactivity to nonfinal and final judgments to strict scrutiny.
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Because Neufeld might be successful at convincing a trial court to
strike a five-year enhancement that is no longer mandatory, he
contends that the distinction implicates his fundamental right to
liberty. “California courts have never accepted the general
proposition that ‘all criminal laws, because they may result in a
defendant’s incarceration, are perforce subject to strict judicial
scrutiny.’ ” (People v. Owens (1997) 59 Cal.App.4th 798, 802.)
More specifically, however, in the context of a different statute,
our Supreme Court expressly rejected this argument: “A
defendant . . . ‘does not have a fundamental interest in a specific
term of imprisonment . . . .’ ” (People v. Wilkinson (2004) 33
Cal.4th 821, 838.)
Under the circumstances, “equal protection of the law is
denied only where there is no ‘rational relationship between the
disparity of treatment and some legitimate governmental
purpose.’ [Citation.] In other words, the legislation survives
constitutional scrutiny as long as there is ‘ “any reasonably
conceivable state of facts that could provide a rational basis for
the classification.” ’ [Citation.] This standard of rationality does
not depend upon whether lawmakers ever actually articulated
the purpose they sought to achieve.” (People v. Turnage (2012) 55
Cal.4th 62, 74-75.)
Our colleagues in Division Six have considered and rejected
the same arguments Neufeld presents here: “Our Supreme Court
has recognized such a [rational] basis: ‘assur[ing] that penal
laws will maintain their desired deterrent effect by carrying out
the original prescribed punishment as written.’ [Citation.] This
helps to ‘deflect[ ] any assumption by offenders that future acts of
lenity will necessarily benefit them.’ ” (Alexander, supra, 45
Cal.App.5th at pp. 346-347.)
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We reject Neufeld’s equal protection challenge and conclude
that the trial court was correct when it determined it lacked
jurisdiction to hear Neufeld’s request for resentencing under S.B.
1393.
C. Appropriate disposition of this appeal
Based on the trial court’s lack of jurisdiction to hear
Neufeld’s motion the People contend we should dismiss this
appeal. We agree.
Where a trial court lacks jurisdiction to hear a motion,
denial of the motion does not affect the defendant’s substantial
rights. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1726.) An
order that does not affect the defendant’s substantial rights is not
an appealable postjudgment order. (Ibid.; accord People v. Turrin
(2009) 176 Cal.App.4th 1200, 1208.) We will dismiss the appeal.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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