People v. Bertram CA2/5

Filed 7/20/21 P. v. Bertram 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B304753
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA091126)
v.
TIMOTHY BERTRAM,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark E. Windham, Judge. Dismissed.
David R. Greifinger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, and Shezad H. Thakor,
Deputy Attorney General, for Plaintiff and Respondent.
On July 14, 2016, the Los Angeles County District Attorney
filed an information charging defendant and appellant Timothy
Bertram (defendant) with four counts of burglary in violation of
Penal Code section 459.1 The information alleged defendant
entered a medical office with the intent to commit a felony on two
different dates in June 2015. The information further alleged
defendant had suffered prior convictions, including a conviction
for a serious or violent felony.
On September 9, 2016, defendant pled no contest to two
counts of burglary (counts one and four). The remaining counts
were dismissed pursuant to defendant’s plea agreement.
Defendant admitted he had suffered three prior convictions. The
court sentenced defendant to state prison for a total of six years
and eight months. That sentence included three years pursuant
to section 667.5, subdivision (b) enhancements (one year for each
of three admitted priors).
On January 15, 2020, defendant filed a document in the
trial court that he styled as a petition for recall of commitment
under section 1016.8. Defendant argued that under Assembly
Bill No. 1618, which amended section 1016.8, he was permitted to
benefit from legislative enactments that occurred after the date of
his plea and judgment. He further argued he should be allowed
to benefit from an amendment to section 667.5. Specifically,
defendant argued that when he was sentenced, the trial court
was permitted to impose a one-year enhancement for each of the
prior prison terms he had served. Under the amended section
667.5, however, an enhancement may only be applied for a prior
1
Undesignated statutory references that follow are to the
Penal Code.
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prison term if the new offense is a “violent” offense as defined by
section 667.5, subdivision (c), which his conviction in this case
was not. Defendant asked the court to recall his commitment
and strike all three one-year enhancements.
The trial court summarily denied the petition on the
ground that section 1016.8 is not by its own terms retroactive,
and there was no authority to construe it as retroactive.
Defendant noticed an appeal from this ruling. This court
appointed counsel to represent him and, after reviewing the
record, defendant’s attorney filed a brief raising no issues. We
invited defendant to personally submit a supplemental brief, and
defendant submitted a brief arguing the trial court erred in
denying his petition for two reasons. First, he argued section
1016.8 is retroactive. Second, he contended his case is not final
because the trial court imposed a one-year enhancement based on
a California Rehabilitation Center commitment that cannot be
used as the basis of an enhancement. (He cited our order in his
habeas corpus proceeding, case number B305381, in which we
concluded the trial court imposed an unauthorized sentence by
imposing an enhancement based on that same prior
commitment.) Defendant requested this court issue an order
consistent with the order it issued in his prior habeas case,
investigate alleged noncompliance with that prior order, and
relieve him from post-release supervision.
Following the submission of his supplemental brief,
defendant contacted the court to provide a new address because
he had been released from prison. We then invited counsel to
submit briefing on the issue of whether defendant’s release
mooted his appeal. The People argued defendant’s appeal is
indeed moot. Counsel for defendant filed a supplemental brief
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stating, in relevant part: “[Defendant] has been released from
prison. [The Attorney General] asserts that after [defendant’s]
release, this court cannot provide [defendant] with effective relief,
and that the appeal is moot and should be dismissed. [Citation.]
[Defendant’s] counsel does not dispute [the Attorney General’s]
position.”
We agree that defendant’s request for review of the court’s
decision on his petition under section 1016.8, including the
specific issues properly presented in his supplemental brief, is
moot. (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132
[dismissal generally required where court of appeal cannot grant
any effectual relief to appellant]; People v. Strams (1931) 118
Cal.App. 148 [appeal rendered moot by appellant’s release from
custody].)
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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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