People v. Vernon CA3 ( 2014 )

Filed 11/17/14 P. v. Vernon CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C076572
v. (Super. Ct. No. 05F03047)
WILLIE JAMES VERNON,
Defendant and Appellant.
Appointed counsel for defendant Willie James Vernon asked this court
to review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).)
Although it appears defendant appeals from a nonappealable order denying
reconsideration of a prior order reducing presentence credit, we will liberally construe
the appeal to include the presentence credit order itself. Either way, however, we lack
jurisdiction to consider the matter. We will dismiss the appeal.
1
I
Defendant pleaded no contest to gross vehicular manslaughter while intoxicated
(Pen. Code, § 191.5, subd. (a)),1 and admitted he personally inflicted great bodily injury
on two victims (§ 12022.7, subd. (a)) and had a prior strike conviction (§ 667, subds.
(b)-(i)). The trial court sentenced him on October 7, 2005, to 18 years in prison (12 years
for gross vehicular manslaughter while intoxicated, plus two consecutive three-year terms
for great bodily injury enhancements) and awarded him 156 days of presentence credit:
104 days of actual credit and 52 days of conduct credit pursuant to section 4019.
More than six years later, in June of 2012, defendant moved for a free copy of the
transcript from his criminal proceeding to pursue a habeas corpus petition. The trial court
denied the request because his appellate counsel had previously been provided with a
copy and defendant did not state how the transcript would aid in his habeas corpus
petition.
The next month, defendant asked the trial court to amend the abstract of judgment
and the minute order from the October 2005 sentencing hearing. He wanted the trial
court to impose his sentence enhancements concurrently and to correct the rate at which
he earned presentence credits. The trial court denied the request.
On September 9, 2013, defendant moved for clarification of the rate at which
his presentence credit accrues under his plea agreement. He said the plea agreement
permitted him to serve 80 percent of his sentence rather than the statutory 85 percent rate
the Department of Corrections and Rehabilitation had been applying. However, the trial
court entered a sua sponte nunc pro tunc order that same day, amending the abstract of
judgment to reflect a reduced award of 119 days of presentence custody credit: 104 days
of actual credit and 15 days of conduct credit pursuant to section 2933.1.
1 Undesignated statutory references are to the Penal Code.
2
More than seven months later, on May 8, 2014, defendant moved for
reconsideration of the trial court’s order reducing his presentence credit. The trial court
denied the motion on May 13, 2014, stating: “This Court has previously considered the
issue of Pre-Sentence credits. On September 9, 2013. The abstract was amended to show
104 days of credit and 15 days of conduct credit for a total of 119 days total credit. [¶]
No further corrections will be considered.”
Defendant filed his notice of appeal on May 22, 2014, stating that he is appealing
from an order on an unspecified date pertaining to presentence credit.
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed and we received no communication from defendant.
While we encourage defendants to pursue a motion for reconsideration in the trial
court before pursuing appellate remedies, “[a]n order denying a motion for
reconsideration . . . is not separately appealable.” (Code Civ. Proc., § 1008, subd. (g).)
Here, we note defendant’s notice of appeal does not expressly identify the order from
which he is appealing; the notice refers only to an order relating to “pre-sentence credits.”
However, defendant attached his motion for reconsideration and the order denying that
motion to his notice of appeal. Thus, it appears defendant appeals from the
nonappealable May 13, 2014 order denying his motion for reconsideration, which does
not afford us jurisdiction.
Nonetheless, we liberally construe notices of appeal “ ‘to protect the right of
appeal if it is reasonably clear what [the] appellant was trying to appeal from. . . .’
[Citations.] A notice of appeal ‘is sufficient if it identifies the particular judgment or
order being appealed.’ ([Cal. Rules of Court,] [r]ule 8.100(a)(2).)” (In re Joshua S.
3
(2007) 41 Cal.4th 261, 272.) Here, we liberally construe defendant’s notice of appeal as
identifying the trial court’s September 9, 2013 nunc pro tunc order modifying defendant’s
presentence custody credit as the order from which he appeals. If that order “is
appealable, the denial of the motion for reconsideration is reviewable as part of an appeal
from that order.” (Code Civ. Proc., § 1008, subd. (g).)
But our liberal construction does not ultimately assist defendant, because we also
lack jurisdiction to review defendant’s appeal from the September 9, 2013 nunc pro tunc
order. “Except . . . as otherwise provided by law, a notice of appeal . . . must be filed
within 60 days after the rendition of the judgment or the making of the order being
appealed.” (Cal. Rules of Court, rule 8.308(a).) That time may be extended if a “valid
motion to reconsider an appealable order under Code of Civil Procedure section 1008,
subdivision (a)” is filed. (Cal. Rules of Court, rule 8.108(e).) To be valid, a motion for
reconsideration must be filed within 10 days after service upon the party of written notice
of entry of the challenged order and must be “based upon new or different facts,
circumstances, or law.” (Code Civ. Proc., § 1008, subd. (a).)
Here, the trial court entered the nunc pro tunc order amending the abstract of
judgment on September 9, 2013, and promptly sent a certified copy of the amended
abstract reflecting the reduced presentence credit to defendant. It appears the amended
abstract was received in the prison legal processing unit on September 12, 2013.
Defendant did not move for reconsideration until more than seven months later, on
May 8, 2014, and his motion was not based on any “new or different facts,
circumstances, or law.” (Code Civ. Proc., § 1008, subd. (a).) His motion was not a valid
motion for reconsideration. (Cal. Rules of Court, rule 8.108(e).)
Moreover, a motion for reconsideration only extends the time to appeal “until the
earliest of: (1) 30 days after the superior court clerk or a party serves an order denying
the motion or a notice of entry of that order; (2) 90 days after the first motion to
reconsider is filed; or (3) 180 days after entry of the appealable order.” (Cal. Rules
4
of Court, rule 8.108(e).) Even giving defendant every benefit of the doubt regarding
timing, he still filed his notice of appeal two months too late. Accordingly, we have
no jurisdiction in this matter and we will dismiss the appeal.
In any event, having undertaken an examination of the entire record, we find
no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The appeal is dismissed.
MAURO , J.
We concur:
NICHOLSON , Acting P. J.
HOCH , J.
5