People v. Bailey CA2/2 ( 2023 )

Filed 5/5/23 P. v. Bailey CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B317110
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA218152)
v.
LAWRENCE BAILEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, deemed a petition for a writ of habeas corpus.
Eleanor J. Hunter, Judge. Modified and remanded with
directions.
Leslie Conrad, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Lawrence Bailey purports to appeal the superior court’s
nonappealable order denying his motion to vacate and correct an
unauthorized sentence under Penal Code1 section 186.22, former
subdivision (b)(4) (now subd. (b)(5)). Treating the appeal as a
petition for a writ of habeas corpus, we modify the gang
enhancement portion of Bailey’s sentence in accordance with
People v. Lopez (2005) 34 Cal.4th 1002 (Lopez) to strike the three-
year gang enhancement imposed under section 186.22, former
subdivision (b)(1), and impose in its place a 15-year minimum
parole eligibility term pursuant to former subdivision (b)(4). This
modification will have no effect on Bailey’s overall sentence of 50
years to life.
In 2002, a jury convicted Bailey and his codefendant Judge
Roberts of one count of first degree murder (§ 187, subd. (a)) in
the 1999 shooting death of Patrick Fulton. (People v. Bailey et al.
(Nov. 12, 2003, B159578) [nonpub. opn.] (Bailey I).)2 The jury
found true the allegations that defendants each personally and
intentionally used and discharged a firearm causing death
(§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds.
(b), (c), (d), & (e)(1)), and that they committed the murder for the
benefit of a criminal street gang, with the specific intent to
1 Undesignated statutory references are to the Penal Code.
2 We have taken judicial notice of our prior opinion
affirming the judgment as well as the record in Bailey’s direct
appeal in case No. B159578, from which we summarize the
background of the case. We have also taken judicial notice of our
opinion and the appellate record in Bailey’s appeal from the
denial of his petition for resentencing under section 1172.6 in
case No. B311188. (See People v. Bailey et al. (Oct. 25, 2021,
B311188) [nonpub. opn.] (Bailey II).)
2
promote, further, and assist in criminal conduct by gang
members (§ 186.22, subd. (b)(1)).
The trial court sentenced each defendant to state prison for
a term of 60 years to life, consisting of 25 years to life for the
murder, 25 years to life for the firearm enhancement pursuant to
section 12022.53, subdivision (d), and a term of 10 years for the
gang enhancement. (Bailey I, supra, B159578.)
This court affirmed defendants’ convictions on direct appeal
in 2003, but modified the gang enhancement to reflect the three-
year term in effect at the time of the offense, rather than the 10-
year term imposed by the trial court. (Bailey I, supra, B159578.)
Thereafter, on February 1, 2021, Bailey filed a petition for
resentencing pursuant to section 1172.6. The superior court
summarily denied the petition on February 4, 2021, ruling that
Bailey’s conviction of first degree murder on a theory of express
malice or specific intent to kill along with the jury’s true finding
on the personal firearm use allegation made Bailey ineligible for
relief as a matter of law.
Bailey appealed. While that appeal was pending, Bailey
filed a motion in the superior court to correct an unlawful
sentence on the gang enhancement pursuant to Lopez, supra, 34
Cal.4th 1002. After this court affirmed the denial of Bailey’s
section 1172.6 petition (Bailey II, supra, B311188), the superior
court denied the motion to correct the sentence on the ground
that Bailey’s “judgment is final, and the court lacks jurisdiction
to correct any alleged unlawful sentence on its own.” This appeal
followed.
3
DISCUSSION
In this appeal, Bailey contends⎯contrary to our decision in
People v. King (2022) 77 Cal.App.5th 629 (King)⎯that the
superior court had jurisdiction to correct the unauthorized
sentence on the gang enhancement. Should we conclude
otherwise, he asks this court to treat the appeal as a petition for
a writ of habeas corpus and modify his sentence. Respondent
asserts the appeal should be dismissed under King because the
superior court lacked jurisdiction to consider Bailey’s motion
below, and the request to treat the appeal as a habeas petition
should be denied as untimely.
We agree that because the superior court had no
jurisdiction to vacate or modify Bailey’s sentence, the order
denying Bailey’s motion to correct an unauthorized sentence is
not appealable. (See King, supra, 77 Cal.App.5th at p. 634.)
However, exercising our discretion to treat the appeal as a
petition for a writ of habeas corpus and addressing the merits of
Bailey’s claim, we conclude that modification of the sentence is
required to strike the three-year gang enhancement and impose
in its place a 15-year minimum parole eligibility term under
section 186.22, former subdivision (b)(4) (now subd. (b)(5)).3 (See
3 At the time of Bailey’s offense in 1999, section 186.22,
former subdivision (b)(4) provided in relevant part: “Any person
who violates this subdivision in the commission of a felony
punishable by imprisonment in the state prison for life, shall not
be paroled until a minimum of 15 calendar years have been
served.” By amendment adopted by the voters effective March 8,
2000, the language describing the 15-year minimum parole
eligibility period was moved to section 186.22, subdivision (b),
4
Lopez, supra, 34 Cal.4th at p. 1004; People v. Arauz (2012) 210
Cal.App.4th 1394, 1405 [modifying judgment to strike 10-year
gang enhancements “and impose, in their place, 15-year
minimum parole eligibility terms”]; People v. Ramos (2004) 121
Cal.App.4th 1194, 1209 [“as to count 1, the term should have
been life with the possibility of parole with a minimum term of 15
years before parole eligibility”].)
1. The superior court’s order denying Bailey’s motion to
correct an unauthorized sentence is not appealable.
Bailey filed his motion to correct an unlawful sentence
nearly 20 years after he had begun serving it. As we observed in
King, “The general rule is that ‘once a judgment is rendered and
execution of the sentence has begun, the trial court does not have
jurisdiction to vacate or modify the sentence.’ [Citations.] And,
‘[i]f the trial court does not have jurisdiction to rule on a motion
to vacate or modify a sentence, an order denying such a motion is
nonappealable, and any appeal from such an order must be
dismissed.’ ” (King, supra, 77 Cal.App.5th at p. 634.)
Arguing that King was wrongly decided, Bailey relies on
the formulation of the “unauthorized sentence rule” that we
paragraph (5). (§ 186.22, subds. (b)(4) & (b)(5).) Subdivision
(b)(1) was also amended to prescribe specific enhancement terms:
“(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term of two, three, or four
years at the court’s discretion. [¶] (B) If the felony is a serious
felony, as defined in subdivision (c) of Section 1192.7, the person
shall be punished by an additional term of five years. [¶] (C) If
the felony is a violent felony, as defined in subdivision (c) of
Section 667.5, the person shall be punished by an additional term
of 10 years.”
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rejected in King to contend that the superior court had
jurisdiction to correct Bailey’s unlawful sentence. But as our
Supreme Court explained in In re G.C. (2020) 8 Cal.5th 1119,
1129 (G.C.), “the ‘unauthorized sentence’ rule is an exception to
the waiver doctrine, not to the requirement that a court must
have jurisdiction before it may act.” (King, supra, 77 Cal.App.5th
at p. 635; see also People v. Scott (1994) 9 Cal.4th 331, 354 [“the
‘unauthorized sentence’ concept constitutes a narrow exception to
the general requirement that only those claims properly raised
and preserved by the parties are reviewable on appeal”]; People v.
Hester (2000) 22 Cal.4th 290, 295 [the rule permits defendants to
“challenge an unauthorized sentence on appeal even if they failed
to object below”].) “Thus, under the unauthorized sentence rule,
a party does not forfeit the right to argue that a sentence is
unlawful by failing to object in the trial court,” but the rule does
not confer jurisdiction where none already exists. (King, at
p. 635.) In other words, while the finality of a conviction or
affirmance of the judgment on appeal will not stand as a bar to
challenging an unlawful sentence, in order to invoke the
unauthorized sentence rule, “the court must [first] have
jurisdiction over the judgment.” (G.C., at p. 1130; King, at
p. 635.)
To follow Bailey’s interpretation of the unauthorized
sentence rule to its logical conclusion would effectively nullify any
jurisdictional limits on a trial court’s authority to modify a
sentence already in execution. As we explained in King, “if the
fact that a sentence is unauthorized itself created jurisdiction in
the trial court to change the sentence, a defendant could establish
jurisdiction any time simply by filing a motion alleging an
unauthorized sentence.” (King, supra, 77 Cal.App.5th at pp. 639–
6
640; see People v. Chavez (2018) 4 Cal.5th 771, 787 [a defendant
cannot “revive lapsed jurisdiction by his own unilateral act”].) As
we observed in King, “a freestanding motion challenging an
incarcerated defendant’s sentence is not a proper procedural
mechanism to seek relief. A motion is not an independent
remedy, but must be attached to some ongoing action.” (King, at
p. 640.)
Here, the superior court lacked jurisdiction to address
Bailey’s freestanding motion to correct his unauthorized
sentence. Likewise, this court has no jurisdiction to entertain an
appeal from the superior court’s order denying the motion.
2. Under certain unusual circumstances, an appellate court
may exercise its discretion to treat an appeal as a petition for a
writ of habeas corpus.
As an alternative to dismissing the appeal, Bailey requests
that we treat the appeal as a petition for a writ of habeas corpus
and address the merits of his claim. (See King, supra, 77
Cal.App.5th at p. 640 [“defendant who is serving a longer
sentence than the law allows may challenge the sentence in a
petition for a writ of habeas corpus”].) Respondent contends we
should decline the request because Bailey failed to show good
cause for his 18-year delay in seeking to correct his sentence.
In unusual circumstances and in the interest of judicial
economy, an appellate court has discretion to treat an appeal
from a trial court’s nonappealable order as a petition for a writ of
habeas corpus. (People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4
[treating defendant’s appeal from a nonappealable order as a
petition for a writ of habeas corpus “in the interest of judicial
economy”]; People v. Richardson (2021) 65 Cal.App.5th 360, 374–
375 [treating appeal as a habeas petition]; H. D. Arnaiz, Ltd. v.
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County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366–1367
[appellate court’s discretion to treat appeal as habeas petition
“should be exercised only in unusual circumstances”].)
Here, such unusual circumstances exist.
Among other arguments in the direct appeal, Bailey
contended—as he does here—that the trial court erred in
imposing the gang enhancement pursuant to section 186.22,
former subdivision (b)(1) on the ground that if the underlying
felony is punishable by life imprisonment (as defendants’ first
degree murder convictions were), the court must impose an
extended minimum parole eligibility period of 15 years pursuant
to section 186.22, former subdivision (b)(4), and no additional
determinate term may be imposed for the gang enhancement.
(Bailey I, supra, B159578; see People v. Ortiz (1997) 57
Cal.App.4th 480, 485–486 (Ortiz).)
This court rejected the argument. Relying on People v.
Herrera (2001) 88 Cal.App.4th 1353, 1364, this court reasoned
that the 15-year minimum term for parole eligibility under
section 186.22, former subdivision (b)(4) (now subd. (b)(5)) “is
inherently inconsistent with a sentence of 25 years to life.”
(Bailey I, supra, B159578; § 190, subd. (a) [“Every person guilty
of murder in the first degree shall be punished by death,
imprisonment in the state prison for life without the possibility of
parole, or imprisonment in the state prison for a term of 25 years
to life”].)
Just over a year after this court decided Bailey I, our
Supreme Court issued its decision in Lopez, in which the high
court considered the exact gang enhancement issue this court had
decided in Bailey’s direct appeal. Lopez, however, reached the
opposite conclusion: “Penal Code section 186.22, subdivision (b)
8
establishes alternative methods for punishing felons whose
crimes were committed for the benefit of a criminal street gang.
Section 186.22, subdivision (b)(1)(C) (section 186.22(b)(1)(C))
imposes a 10-year enhancement when such a defendant commits
a violent felony. Section 186.22(b)(1)(C) does not apply, however,
where the violent felony is ‘punishable by imprisonment in the
state prison for life.’ (Pen. Code, § 186.22, subd. (b)(5).) Instead,
section 186.22, subdivision (b)(5) . . . applies and imposes a
minimum term of 15 years before the defendant may be
considered for parole.” (Lopez, supra, 34 Cal.4th at pp. 1004,
1011.)
Respondent contends Bailey’s request to treat the appeal as
a habeas petition is untimely and should be denied. However,
respondent’s argument depends on the assumption that during
his incarceration after this court’s decision rejecting his gang
enhancement argument on appeal, Bailey had the ability and the
obligation to keep up with California Supreme Court
jurisprudence and bring a habeas petition on any issue that arose
pertaining to his sentence—without the benefit of counsel. We
will not indulge respondent’s assumption in this case. Moreover,
a routine dismissal of Bailey’s appeal and refusal to treat the
appeal as a habeas petition for untimeliness would effectively
deprive Bailey of any means to correct what appears under Lopez
to be an unauthorized sentence. (See People v. Scott, supra,
9 Cal.4th at p. 354 [“The ‘unauthorized sentence’ principle also
has been invoked to determine whether claims previously
rejected or never raised are procedurally barred on habeas
corpus”].)
In light of these circumstances, and in the interest of
avoiding further delay and conserving judicial resources, we will
9
exercise our discretion to treat the instant appeal as a petition for
a writ of habeas corpus.
3. Under the California Supreme Court’s decision in Lopez,
Bailey’s sentence is unauthorized.
Lopez established that “where a gang-related felony falls
within [section 186.22,] subdivision (b)(5)’s alternative penalty
provision, the trial court must sentence the defendant under
subdivision (b)(5). It cannot impose a (b)(1)(C) enhancement
instead.” (People v. Francis (2017) 16 Cal.App.5th 876, 886
(Francis), citing Lopez, supra, 34 Cal.4th at pp. 1004, 1006.)
Lopez’s holding that a first degree murder committed for the
benefit of a gang is governed exclusively by subdivision (b)(5)
(former subdivision (b)(4)) of section 186.22 thus bars the
imposition of any determinate term under section 186.22,
subdivision (b)(1). (Lopez, at pp. 1004, 1006; Francis, at p. 886;
accord, People v. Johnson (2003) 109 Cal.App.4th 1230, 1236–
1238; People v. Harper (2003) 109 Cal.App.4th 520, 525; Ortiz,
supra, 57 Cal.App.4th at pp. 485–486.)
The fact that Lopez involved the post-2000 version of
section 186.22 after the statute was rewritten by Proposition 21,
while this case concerns the 1999 version of the statute, is
immaterial to the application of Lopez to this case. Because
Bailey was sentenced to 25 years to life on his conviction for first
degree murder (Bailey I, supra, B159578), both the trial court’s
original imposition of the 10-year gang enhancement under
subdivision (b)(1)(C) and this court’s modification of the
enhancement to three years under former subdivision (b)(1)
constituted the imposition of an unauthorized sentence.
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4. Lopez applies retroactively and requires modification of
Bailey’s sentence.
Ordinarily, “[a] writ of habeas corpus will not issue for a
claim that was raised and rejected on appeal.” (In re Martinez
(2017) 3 Cal.5th 1216, 1222; see In re Waltreus (1965) 62 Cal.2d
218, 225.) However, an exception to this rule “applies ‘when
there has been a change in the law affecting the petitioner.’
[Citation.] To trigger this exception, the change in the law must
have retroactive effect. We have said that a change in the
criminal law will be given retroactive effect when a rule is
substantive rather than procedural (i.e., it alters the range of
conduct or the class of persons that the law punishes, or it
modifies the elements of the offense) or when a judicial decision
undertakes to vindicate the original meaning of the statute.” (In
re Martinez, at p. 1222; Woosley v. State of California (1992) 3
Cal.4th 758, 794 [“ ‘Whenever a decision undertakes to vindicate
the original meaning of an enactment, putting into effect the
policy intended from its inception, retroactive application is
essential to accomplish that aim’ ”].)
The Lopez court’s examination of the enhancement
provisions of section 186.22 and its analysis of the statutory
language plainly constitute a vindication of the statute’s original
meaning. Moreover, as one court has observed, since Lopez
interpreted section 186.22, subdivisions (b)(1) and (b)(5) (former
subd. (b)(4)) in 2005, the Legislature has never changed the
alternative penalty provision in subdivision (b)(5) (former subd.
(b)(4)), despite multiple amendments to the statute. (Francis,
supra, 16 Cal.App.5th at pp. 886–887.) “[W]hen as here ‘ “a
statute has been construed by judicial decision, and that
construction is not altered by subsequent legislation, it must be
11
presumed that the Legislature is aware of the judicial
construction and approves of it.” [Citations.] “There is a strong
presumption that when the Legislature reenacts a statute which
has been judicially construed it adopts the construction placed on
the statute by the courts.” ’ ” (People v. Meloney (2003) 30 Cal.4th
1145, 1161; see also People v. Franco (2009) 180 Cal.App.4th 713,
724.)
With the retroactive application of Lopez to the instant
case, the gang enhancement portion of Bailey’s sentence is
modified to strike the three-year gang enhancement imposed
under section 186.22, former subdivision (b)(1), and impose in its
place a 15-year minimum parole eligibility term pursuant to
former subdivision (b)(4). This modification does not affect
Bailey’s overall sentence of 50 years to life, consisting of 25 years
to life for first degree murder, plus 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d).4
4 Lopez recognized that its construction of section 186.22,
subdivision (b)(5) (former subd. (b)(4)), imposing a minimum
parole eligibility term of 15 years, would have no practical effect
for first degree murderers, who must serve a minimum of 25
years before becoming eligible for parole. (§ 190, subds. (a), (e);
Lopez, supra, 34 Cal.4th at p. 1009.) “[T]he greater penalty set
forth in section 190—i.e., 25 years to life—is the proper
punishment for [a] defendant’s first degree murder conviction.
The true finding under section 186.22(b)(5), which provides for a
lower minimum term, ‘is a factor that may be considered by the
Board of Prison Terms when determining a defendant’s release
date, even if it does not extend the minimum parole date per se.’ ”
(Lopez, at p. 1009; § 190, subds. (a), (e).)
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DISPOSITION
Bailey’s sentence is modified as follows: The three-year
gang enhancement imposed under Penal Code section 186.22,
former subdivision (b)(1) is stricken, and in its place the 15-year
parole eligibility term under Penal Code section 186.22,
subdivision (b)(5) (former subd. (b)(4)) is imposed. Bailey’s
overall sentence is modified to 50 years to life, consisting of 25
years to life for first degree murder, plus 25 years to life for the
firearm enhancement under Penal Code section 12022.53,
subdivision (d). The matter is remanded and the trial court is
directed to amend the abstract of judgment and forward a copy to
the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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