People v. Fortune CA2/5

Filed 1/14/22 P. v. Fortune CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B307447
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. YA034511)
LUKE FORTUNE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura C. Ellison, Judge. Dismissed.
Law Office of R. Wayne McMillan and R. Wayne McMillan
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jason Tran, Supervising Deputy
Attorney General, and Shezad H. Thakor, Deputy Attorney
General, for Plaintiff and Respondent.
In 1997, Luke Fortune (defendant) pled no contest to one
count of robbery. Twenty-two years later, defendant moved to
vacate his plea on the ground that he was not advised of, and did
not meaningfully understand, the adverse immigration
consequences of his plea. The trial court denied the motion and
defendant did not appeal that ruling. But a year later, defendant
moved for reconsideration of the earlier ruling, the trial court
denied that motion, and defendant noticed an appeal from the
refusal to reconsider the earlier order. We consider whether
defendant’s challenge to the denial of his motion for
reconsideration is justiciable.
I. BACKGROUND
A. Defendant’s No Contest Plea
In October 1997, the Los Angeles County District Attorney
charged defendant in an information with two counts of robbery
(Pen. Code,1 § 211) and one count of assault with a deadly weapon
(§ 245, subd. (a)(1)). The information further alleged defendant
personally used a deadly and dangerous weapon in the
commission of the robberies (§ 12022, subd. (b)(1)). At the time of
the charged offenses, defendant was a legal permanent resident
of the United States and had been for 11 years.
Two months later, pursuant to an agreement with the
prosecution, defendant pled no contest to one of the robbery
charges. Defendant also admitted the corresponding section
12022 allegation. Defendant agreed—as expressed by his initials
on a pre-printed written plea advisement form—that he was
1
Undesignated statutory references that follow are to the
Penal Code.
2
entering his no contest plea “freely and voluntarily and with the
full understanding of all the matters set forth in the
[information] and in this form.” Among the advisements on the
plea form checked and initialed by defendant was the following:
“I understand that if I am not a citizen of the United States, the
conviction for the offense charged may have the consequences of
deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United
States.”
In signing the plea form, defendant verified he had
discussed each of the form’s advisements with counsel.
Defendant’s attorney also signed the form, declaring he had
explained “each” of the form’s advisements to defendant.
At the plea hearing, as memorialized by a resulting minute
order, defendant was advised in similar terms about the
immigration consequences of his plea: “If you are not a citizen,
you are hereby advised that a conviction of the offense for which
you have been charged may have the consequences of
deportation, exclusion from admission to the United States, or
denial of denial of naturalization pursuant to the laws of the
United States.” The trial court accepted defendant’s plea and
sentenced defendant to three years, but suspended the sentence.
The court placed defendant on formal probation for three years
and ordered him to serve 270 days in county jail.
3
B. Defendant’s Motion to Vacate
Many years later, in June 2019, defendant moved to vacate
his conviction pursuant to section 1473.7.2 Defendant maintained
his conviction should be vacated because he did not receive any
legal advice from his attorney on how his plea might affect his
immigration status. Defendant supported his motion with
evidence that he was currently a licensed commercial insurance
broker and with several letters from individuals attesting to his
good character. Defendant did not support his motion with a
declaration from the attorney advising him in connection with his
no contest plea.
The People opposed the motion. In view of the record
evidence that defendant was advised of the immigration
consequences of his plea by his attorney and by the trial court,
and in the absence of evidence corroborating defendant’s
assertions in his declaration about the failure of his attorney to
properly advise him, the People argued defendant failed to meet
his evidentiary burden. In addition, the People maintained
defendant had not presented any evidence corroborating his
assertion that if properly advised he would have chosen trial over
the plea deal offered to him.
2
Section 1473.7 authorizes a noncitizen defendant who is no
longer in criminal custody to move to vacate a conviction or
sentence when the “conviction or sentence is legally invalid due
to prejudicial error damaging the moving party’s ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
plea of guilty or nolo contendere.” (§ 1473.7, subd. (a)(1).)
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On July 18, 2019, the trial court denied defendant’s section
1473.7 motion. In addition to the signed and initialed plea
advisement form, the court relied on the transcript of defendant’s
preliminary hearing to conclude defendant received “a great deal
on a case that was [a] slam dunk on him.” 3 As the court
explained, defendant was aware of how advantageous the plea
deal was for him: “[Defendant] was given a very, very good deal.
[Defendant] said himself he jumped on [the plea deal] because it
was basically a disposition that’s going to get him out of jail
before Christmas. That’s very appealing to him. He’s 21 years
old.”
At the conclusion of the hearing, the court stated, “If you
feel it’s appropriate to revisit, I’ll look at whatever is filed. At
this point[,] I’m denying [the section] 1473.7 motion.”
C. Defendant’s Motion for Reconsideration
On July 8, 2020—more than 11 months after the trial court
denied the motion to vacate, and nine months after his time to
3
The court summarized the salient points: “[Defendant] had
two witnesses that testified at the preliminary hearing [who]
identified [defendant] as running out of a car up to their car with
a knife demanding cellphones and asking them where they’re
from. Two witnesses identified him at the preliminary hearing.
They were cross examined. The police were called to the scene
very quickly. They arrested [defendant] pretty close to the scene.
They arrested [defendant] with the victim’s cellphone in his
pocket. [¶] And [defendant] put on an affirmative defense at the
preliminary hearing, and the affirmative defense was not
[witness misidentification]. The affirmative defense was, ‘I was
too drunk to understand what I was doing.’”
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appeal that ruling expired (Cal. Rules of Court, rule 8.308(a))—
defendant moved for reconsideration with assistance from a new
lawyer. Defendant argued reconsideration was warranted in
light of two cases interpreting recently amended section 1473.7:
People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho) and
People v. Mejia (2019) 36 Cal.App.5th 859 (Mejia).4
Defendant submitted a declaration with his reconsideration
motion. Defendant declared he did not understand at the time of
his plea that his suspended state prison sentence would be
considered under federal immigration law to be a sentence that
was actually imposed for an aggravated felony, thereby
preventing him from ever becoming a United States citizen.
The trial court denied defendant’s reconsideration motion
after hearing argument from his attorney. The court believed
there was no appropriate basis for seeking reconsideration
because defendant’s remedy was to appeal from the earlier
ruling: “[I]f I rule on this again today, and your client doesn’t
like the result, what would prevent him from hiring another
lawyer? His remedy is appeal and he didn’t do that.” The court
found defendant “had the benefit of a full hearing [on the motion
to vacate]. Prior counsel was not ineffective. The issues were
very, very clear. . . . [T]his is just an opportunity for [defendant]
to take another bite at the apple. His remedies were very clear at
the time. It was to appeal [the court’s] decision, and he chose not
4
Both cases were decided prior to the trial court’s initial
July 18, 2019, denial of the motion to vacate: the opinion in
Camacho was issued seven months before, on February 27, 2019,
and the opinion in Mejia almost a month earlier, on June 26,
2019. Defendant continues to rely on these cases as grounds for a
purported change in the law that justifies reconsideration.
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to do that. It’s been almost . . . one year . . . . His appeal period
has long [since] run.”
Defendant noticed an appeal from the order denying his
motion for reconsideration. Apparently believing a certificate of
probable cause may be required (the trial court did not grant a
certificate, but that is immaterial for our purposes), defendant
declared his “appeal arises from the court[’]s refusal to hold a
hearing on . . . defendant’s Motion to Reconsider the court’s
previous denial of defendant’s motion . . . .”
II. DISCUSSION
Defendant claims the order denying his motion for
reconsideration is appealable under section 1237, subdivision (b),
which provides in pertinent part: “An appeal may be taken by the
defendant from . . . [¶] . . . [¶] . . . any order made after judgment,
affecting the substantial rights of the party.” Defendant is
incorrect.
Our Supreme Court has held there is a “well established
qualification” to the seemingly broad scope of section 1237: “[N]o
appeal lies from an order denying a motion to vacate a judgment
of conviction on a ground which could have been reviewed on
appeal from the judgment.” (People v. Thomas (1959) 52 Cal.2d
521, 527 (Thomas); accord, People v. Rick (1952) 112 Cal.App.2d
410, 412 [holding under § 1237 that “[a]n order made after
judgment is not appealable where the motion merely asked the
court to repeat or overrule a former ruling on the same facts”];
People v. Palmer (1942) 49 Cal.App.2d 579, 580 (Palmer) [it is
“well established that an order made after judgment is not
appealable where the motion or application merely asks the court
to repeat or overrule the former ruling on the same facts”].) Were
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the rule otherwise, it would lead to an incongruous result—it
“‘would . . . virtually allow[ ] two appeals from the same ruling,
and would, in some cases, have the effect of extending the time
for appealing . . . .’”5 (Palmer, supra, at 580.) As our highest
court has explained, “[an] appeal from the judgment is an
adequate remedy.” (Thomas, supra, at 527.) Here, the motion to
vacate and the motion for reconsideration were based on the
same facts and defendant does not contend otherwise. According
to defendant, the difference between the two motions was the
“entirely separate legal theories” advanced in each motion.
Defendant had an opportunity to contest the trial court’s
ruling on the motion to vacate by appealing that ruling.
(§ 1473.7, subd. (f) [“An order granting or denying the motion is
appealable . . . as an order after judgment affecting the
substantial rights of a party”]; People v. Vivar (2021) 11 Cal.5th
510, 523 [“When a trial court grants or denies a motion to vacate
5
Although our Supreme Court has noted in the civil context
that there is a split in authority about whether an order denying
a motion for reconsideration is appealable (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1140, fn. 5), “[t]he majority of recent
cases have concluded that orders denying motions for
reconsideration are not appealable, even where based on new
facts or law. [Citations.] These courts have concluded that
orders denying reconsideration are not appealable because . . . ‘to
hold otherwise would permit, in effect, two appeals for every
appealable decision and promote the manipulation of the time
allowed for an appeal.’ [Citations.]” (Morton v. Wagner (2007)
156 Cal.App.4th 963, 968-969; accord, Powell v. County of Orange
(2011) 197 Cal.App.4th 1573, 1576-1577 [“The majority of courts
addressing the issue have concluded an order denying a motion
for reconsideration is not appealable, even when based on new
facts or law”].)
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a conviction under section 1473.7, the parties can appeal”].)
Defendant, however, did not appeal, and he cannot manufacture
a nearly year-long extension of the timeliness rules by filing a
motion for reconsideration supported by no new authority.
Camacho and Mejia were decided before the time for appeal had
run and, indeed, even before the motion to vacate was decided.
Defendant’s contention that his claim is justiciable because
he relied on the trial court’s “revisit” comment made at the
conclusion of the hearing on the motion to vacate fails for two
reasons. One, defendant did not advance this as a ground
justifying reconsideration (or even mention the revisit comment)
in the court below and he accordingly cannot rely on it now. Two,
the comment made by the trial court was obviously not meant to
apply in perpetuity and thereby effectively extend without
limitation the time to appeal the initial July 2019 ruling. Rather,
if defendant wanted the court to revisit some aspect of its earlier
ruling, he needed to act within the two months before an appeal
needed to be filed, lest the order become final. (See Jackson v.
Superior Court (2010) 189 Cal.App.4th 1051, 1067 [trial court
had inherent power to reconsider its order granting petition for
writ of habeas corpus until loss of jurisdiction that would occur
when the order became final and binding, or when the People
filed a notice of appeal]; In re Marriage of Barthold (2008) 158
Cal.App.4th 1301, 1313, fn. 9 [order not yet final, and was thus
within the trial court’s prerogative to reconsider, because the
time to appeal had not expired]; see also People v. DeLouize
(2004) 32 Cal.4th 1223, 1232-1233; People v. Ross (1962) 206
Cal.App.2d 542, 543 [order denying motion to reconsider prior
order denying probation not appealable].)
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In sum, insofar as the trial court even had jurisdiction to
rule on defendant’s motion for reconsideration, its denial of that
motion is not appealable. (People v. Van Buren (1933) 134
Cal.App. 206, 207-209 [dismissing appeal of defendant who filed
successive motions to vacate the judgment, for different reasons,
and “had at least one opportunity . . . to have determined the very
point” he urged on appeal].)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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