People v. Villalobos CA3 ( 2023 )

Filed 6/28/23 P. v. Villalobos 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C096077
Plaintiff and Respondent, (Super. Ct. No. 12F3930)
v.
RAMON DANIEL VILLALOBOS,
Defendant and Appellant.
Defendant Ramon Daniel Villalobos appeals from the trial court’s order denying
his renewed petition for resentencing or dismissal under Proposition 64, the Control,
Regulate and Tax Adult Use of Marijuana Act, which, among other things, reduced
certain marijuana-related felony offenses to misdemeanors. (See People v. Smit (2018)
24 Cal.App.5th 596, 599 (Smit).) However, because “an order denying a renewed motion
pursuant to [Code of Civil Procedure] section 1008, subdivision (b) is not appealable”
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(Tate v. Wilburn (2010) 184 Cal.App.4th 150, 160 (Tate)), we shall dismiss the appeal.
(Hereafter, undesignated statutory references are to the Code of Civil Procedure.) We
further conclude that any purported appeal from the trial court’s amendment to the
sentencing minutes, which struck a one-year prior prison term enhancement from
defendant’s original sentence, must also be dismissed.
BACKGROUND
In 2012, a jury convicted defendant of possessing marijuana for sale, transporting
marijuana, and possessing a switchblade knife. (People v. Villalobos (Nov. 22, 2013,
C072755) [nonpub. opn.].) The trial court also found defendant had three prior strike
convictions within the meaning of the Three Strikes law, including a 2000 Texas sexual
assault conviction that the trial court concluded was “the equivalent to a rape in
California.” The trial court further found defendant served a prison term in connection
with one of the other strike convictions. After denying defendant’s invitation to strike
any of his prior strikes, the trial court sentenced him to serve an indeterminate term of 26
years to life in state prison.
On appeal from the underlying judgment, we vacated one of the other strike
conviction findings, involving a 1996 Illinois conviction, and otherwise affirmed the
judgment. (People v. Villalobos, supra, C072755.) In connection with our rejection of
defendant’s assertion that the trial court abused its discretion in declining to strike any of
his prior strikes, we noted the following with respect to the 2000 Texas sexual assault
conviction: “The only facts in the record regarding the 2000 Texas felony conviction for
sexual assault (which the trial court found to be the equivalent of a rape conviction under
[Penal Code] section 261, a finding that defendant does not dispute) are defendant’s
comments in the probation report to which the trial court declined to give credence.
Defendant claimed that he had consensual sex with the daughter of a homicide detective
at a party, which resulted in a pregnancy ‘so he was charged because of who the victim
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was.’ As the trial court specifically noted, the one-page record of conviction reflected
that he had also been convicted in the same proceeding of ‘aggravated perjury,’ and the
Texas court had denied his application for probation.” (Ibid., italics added.)
In November 2016, the electorate enacted the Control, Regulate and Tax Adult
Use of Marijuana Act (Proposition 64). This enactment legalized recreational marijuana
use and reduced certain marijuana-related offenses, including possessing marijuana for
sale and transporting marijuana, from felonies to misdemeanors unless, as relevant here,
“[t]he person has one or more prior convictions for an offense specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or
for an offense requiring registration pursuant to subdivision (c) of Section 290 of the
Penal Code.” (Health & Saf. Code, §§ 11359, subd. (c)(1), 11360, subd. (a)(3)(A).) The
“super strike” offenses set forth in Penal Code section 667, subdivision (e)(2)(C)(iv)
include forcible rape. (People v. Tennard (2017) 18 Cal.App.5th 476, 488; see Pen.
Code, § 667, subd. (e)(2)(C)(iv)(I);Welf. and Inst. Code, § 6600, subd. (b).) Rape is also
listed as one of the offenses requiring registration pursuant to Penal Code section 290,
subdivision (c).
Proposition 64 also added section 11361.8 to the Health and Safety Code, creating
“a vehicle by which a defendant currently serving a sentence for a conviction for any of a
number of marijuana-related statutes, including [Health and Safety Code] section[s]
11359 [and 11360], may petition the trial court for resentencing or dismissal of the drug
conviction if the offense is no longer a crime or is now a lesser offense.” (Smit, supra,
24 Cal.App.5th at p. 600.)
Defendant filed such a petition in January 2017. While designated a “petition for
dismissal” on a Judicial Council form citing Penal Code section 17, subdivisions (b) and
(d)(2), and Penal Code sections 1203.4, 1203.4a, 1203.41, and 1203.49, the declaration
filed with the petition makes clear that defendant was seeking relief under Health and
Safety Code section 11361.8. The trial court denied the request for dismissal with
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prejudice and denied the request for reduction of defendant’s felony convictions to
misdemeanors “without prejudice” to defendant’s ability to request a hearing, and also
noting: “Petitioner may seek relief pursuant to Prop 64.” The trial court’s order also
indicates that the public defender’s office was notified about defendant’s request for
relief under Proposition 64.
In July 2017, the public defender’s office filed a new petition on defendant’s
behalf, seeking the same relief, but this time designated a petition for resentencing or
dismissal under Health and Safety Code section 11361.8, subdivision (b) on the
appropriate Judicial Council form. The prosecution responded that defendant was not
entitled to relief because he “previously suffered a prior conviction for an offense listed
within Penal Code § 667(e)(2)(C)(iv) or 290(c),” specifically, “Rape – Texas Penal Code
[section] 22.011(a)(1).” The trial court denied the petition in February 2018, noting:
“Petitioner has a prior felony which is serious [and] violent which requires [Penal Code
section] 290 registration.” The order also noted: “Petitioner’s counsel may request a
hearing; the denial is without prejudice.” The record does not indicate that a hearing was
requested by the public defender’s office. Nor is there any indication that defendant
appealed from this order.
Over three years later, in September 2021, the public defender’s office filed
another petition seeking the same relief under Health and Safety Code section 11361.8.
The prosecution again responded that defendant was not entitled to relief due to his 2000
Texas conviction.
The matter was placed on calendar and a hearing was held in March 2022. At the
hearing, the trial court characterized the new petition as a motion for reconsideration of
the previous order denying the 2017 petition. The trial court denied the petition/motion
for reconsideration because “[n]othing new has been stated in the petition” and the 2000
Texas conviction amounts to “a super strike,” which “in and of itself disqualifies
[defendant] from being able to seek resentencing.” After denying the petition, the trial
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court struck the prior prison term enhancement “because of the change in the law.” (See
Senate Bill No. 136 (2019-2020 Reg. Sess.), amending the circumstances under which a
prior prison term enhancement may be imposed.)
The order denying defendant’s petition was filed on March 28, 2022. The same
day, the trial court amended the sentencing minutes to reflect a sentence of 25 years to
life and issued a new abstract of judgment. Defendant filed two notices of appeal on
April 13, 2022, one indicating defendant was appealing from the “denial for resentencing
under Prop 64,” and the other simply checking the box for “Other (specify),” without
specifying a particular order from which he was appealing.
DISCUSSION
I
The Order Denying Defendant’s Renewed Motion is Not Appealable
Defendant contends the trial court prejudicially erred in denying his petition for
resentencing or dismissal under Proposition 64 because the prosecution did not prove his
2000 Texas conviction constituted a disqualifying super strike. In response, the Attorney
General argues the trial court properly characterized defendant’s petition as a motion for
reconsideration and urges this court to dismiss the appeal because an order denying a
motion for reconsideration is not appealable. We conclude the petition is more properly
characterized as a renewed motion under section 1008, subdivision (b), but the result is
the same. The order is not appealable.
Section 1008, subdivision (a) provides, in relevant part: “When an application for
an order has been made to a judge, or to a court, and refused in whole or in part, . . . any
party affected by the order may, within 10 days after service upon the party of written
notice of entry of the order and based upon new or different facts, circumstances, or law,
make application to the same judge or court that made the order, to reconsider the matter
and modify, amend, or revoke the prior order.” (Italics added.) Subdivision (b) of this
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section provides, in relevant part: “A party who originally made an application for an
order which was refused in whole or part . . . may make a subsequent application for the
same order upon new or different facts, circumstances, or law . . . .” (§ 1008, subd. (b),
italics added.)
Defendant’s 2021 petition did not ask the trial court to reconsider its February
2018 order denying resentencing or dismissal under Proposition 64. It did, however, ask
the trial court for “the same order” (§ 1008, subd. (b)) that defendant sought when he
filed the previous petitions in January and July of 2017, i.e., an order granting relief
under Proposition 64. While the trial court viewed defendant’s 2021 petition as a motion
for reconsideration under section 1008, subdivision (a), we conclude it is more accurately
characterized as “a renewed motion under section 1008, subdivision (b)” because the
2017 and 2021 petitions sought identical relief. (Tate, supra, 184 Cal.App.4th at p. 157;
California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43
[second motion for attorney’s fees, while brought pursuant to a different statute, was “a
motion for ‘the same order’ ” under section 1008, subdivision (b) because the two
motions “sought identical relief”].)
An order denying a renewed motion is not appealable. (Tate, supra,
184 Cal.App.4th at p. 160.) As our colleagues at the Fourth Appellate District explained
in Tate, subdivisions (a) and (b) of section 1008 are “closely related” provisions and “an
extensive body of case law concerning the appealability of an order denying a motion for
reconsideration” has held such an order is not appealable. (Id. at pp. 159-160; see, e.g.,
Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459.) The court explained that
the same rationale applied with equal force to an appeal from an order denying a renewed
motion. One consideration in particular, i.e., eliminating the possibility that a party
would have an unwarranted extension of time to appeal a decision, was “actually more of
a concern” in the context of a renewed motion because “such a motion may be brought at
any time, while a motion for reconsideration must be brought ‘within 10 days after
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service upon the party of written notice of entry of the [underlying] order.’ [Citation.]”
(Tate, supra, at p. 160.) Another relevant consideration is the prospect of a party having
“two appeals from the same decision.” (Ibid.)
Both of those considerations are implicated by the facts of this case. Defendant
could have appealed from the February 2018 order denying his petition for resentencing
or dismissal under Proposition 64, but he did not do so. (See, e.g., People v. Banda
(2018) 26 Cal.App.5th 349 [appeal from order denying motion to dismiss under
Proposition 64].) If a renewed motion seeking the same relief is also appealable, this
presents the possibility of multiple appeals from the same denial, especially in a case
such as this one, where defendant has presented no new circumstances supporting the
renewed petition. Moreover, having failed to appeal from the 2018 denial of his petition,
defendant waited more than three years to file a renewed petition and then appeal from
the denial of that renewed petition. Allowing this appeal to continue would effectively
extend the amount of time defendant had to appeal from the initial denial more than three
years.
Nevertheless, defendant argues this appeal is properly taken from the only final
judgment issued on the Proposition 64 petition because the February 2018 order was “a
provisional, conditional ruling denying the petition.”
We are not persuaded. First, defendant’s conclusory statements in the reply brief
notwithstanding, he has not persuaded this court that the 2018 order was not appealable.
But second, even if we assume he is right that the 2018 order was interim rather than
final, the 2021 petition is still a renewed motion. Section 1008, subdivision (e) provides:
“This section specifies the court’s jurisdiction with regard to applications for
reconsideration of its orders and renewals of previous motions, and applies to all
applications to reconsider any order of a judge or court, or for the renewal of a previous
motion, whether the order deciding the previous matter or motion is interim or final. No
application to reconsider any order or for the renewal of a previous motion may be
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considered by any judge or court unless made according to this section.” (Italics added.)
Thus, whether the 2018 order was interim or final, the 2021 petition seeking the same
relief remains a renewed motion; the denial of which is not appealable. (Tate, supra,
184 Cal.App.4th at p. 160.)
Moreover, under section 1008, subdivision (e), the trial court had no jurisdiction to
hear defendant’s renewed motion unless it was based “upon new or different facts,
circumstances, or law” (§ 1008, subd. (b)), which it was not. (See Stats. 1992, ch. 460,
§ 1 [“it is the further intent of the Legislature to clarify that no renewal of a previous
motion, whether the order deciding the previous motion is interim or final, may be heard
unless the motion is based on new or different facts, circumstances, or law”]; In re
Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1313 [“in amending section 1008 to
add the language making that statute exclusive and jurisdictional, the Legislature
intended it to apply to interim and final orders alike”].) And this court has jurisdiction
over post-judgment appeals only if they may affect the substantial rights of a party. (Pen.
Code, § 1237, subd. (b).) Without jurisdiction in the trial court to even consider the 2021
petition, we cannot conclude denial of the petition in any way affected defendant’s
substantial rights.
We therefore dismiss this appeal. In light of this conclusion, we deny the Attorney
General’s request for judicial notice of the record filed in Villalobos, specifically the
exhibits utilized by the trial court in the underlying case to find defendant’s 2000 Texas
conviction qualified as a strike conviction.
II
Defendant’s Remaining Contention
Defendant also asserts that the drug registration parole condition imposed by the
trial court under former Health and Safety Code section 11590 at his original sentencing
hearing must be stricken because this provision was repealed in 2020 as part of Assembly
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Bill No. 1261 (2019-2020 Reg. Sess.) (Assembly Bill 1261). The Attorney General
concedes this parole condition should be stricken “[a]ssuming [defendant] appealed from
the trial court’s sentencing order, and assuming the trial court’s amended order reimposed
the drug registration requirement.” We need not determine whether these assumptions
are well-founded because we conclude any purported appeal from the trial court’s
amendment to the sentencing minutes must also be dismissed.
Defendant was originally sentenced in December 2012. Nine years later, when
defendant filed the renewed petition under Proposition 64, his underlying judgment was
final. He does not argue to the contrary. Instead, defendant argues that when the trial
court, after denying that petition, went on to strike the one-year prior prison term
enhancement and amend the sentencing minutes to reflect a term of 25 years to life, the
trial court thereby “reopened the case and rendered an otherwise final judgement [sic]
non-final.” As a nonfinal judgment, defendant argues, he can “appeal the new sentence”
and have Assembly Bill 1261 applied to his now-nonfinal judgment. That is not correct.
While we agree that Assembly Bill 1261 applies to all cases not yet final on appeal
(see People v. Pinedo (2021) 66 Cal.App.5th 608, 614-619), we disagree that this is one
of those cases. In support of the assertion that his judgment is nonfinal, defendant relies
on People v. Padilla (2022) 13 Cal.5th 152. There, as here, the defendant’s original
sentence had become final. However, unlike this case, that sentence “was vacated on
habeas corpus and the case was returned to the trial court for imposition of a new
sentence.” (Id. at p. 158.) Holding that Proposition 57, which “amended the law
governing the punishment of juvenile offenses in adult criminal court” (ibid.), applied to
the defendant’s appeal from the new sentence, our Supreme Court explained: “When [the
defendant’s] sentence was vacated, the trial court regained the jurisdiction and duty to
consider what punishment was appropriate for him, and [the defendant] regained the right
to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and
it remains nonfinal in its present posture because the Court of Appeal ordered a second
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resentencing, from which the Attorney General now appeals.” (Id. at pp. 161-162.)
Here, unlike Padilla, there has been no vacation of defendant’s sentence, and no remand
of the matter to the trial court for resentencing, thereby reviving jurisdiction in the trial
court to impose a new sentence.
Defendant’s argument on appeal appears to assume that the trial court, on its own
motion, may reassert jurisdiction over an otherwise final judgment for purposes of
imposing a new sentence. Again, that is not correct. Once a judgment is rendered,
except for limited statutory exceptions (see Pen. Code, §§ 1170.126, 1170.18, 1172.6),
the sentencing court is without jurisdiction to vacate or modify the sentence, except
pursuant to the provisions of Penal Code section 1172.1, which allows a sentencing court
on its own motion to recall and resentence, subject to the express limitation that the court
must act to recall the sentence within 120 days after committing the defendant to prison
or county custody. (Pen. Code, § 1172.1, subd. (a)(1); former Pen. Code, § 1170.03 [this
was the applicable section at the time the trial court amended the sentencing minutes in
this case]; Stats. 2021, ch. 719, § 3.1 [effective Jan. 1, 2022].) “Indeed, ‘the court loses
“own-motion” jurisdiction if it fails to recall a sentence within 120 days of the original
commitment. [Citations.]’ [Citation.]” (People v. Fuimaono (2019) 32 Cal.App.5th 132,
134 [referencing former Penal Code section 1170, subdivision (d)(1), where the
applicable provisions resided prior to moving to former Penal Code section 1170.03].)
Defendant did not ask the trial court to resentence him pursuant to that court’s
limited authority to resentence under Penal Code section 1172.1 (or former Penal Code
sections 1170.03 or 1170, subdivision (d)(2)), nor could he have successfully invoked
these provisions considering the 120-day time limit had long expired. Defendant does
not claim the other statutory exceptions apply. Nor did defendant’s renewed petition
under Proposition 64 provide the trial court with jurisdiction to modify his sentence
because, as we have already explained, the trial court had no jurisdiction to hear this
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renewed petition unless it was based upon new or different facts, circumstances, or law
(§ 1008, subd. (b)), which it was not.
This court has jurisdiction over post-judgment appeals only if they may affect the
substantial rights of a party. (Pen. Code, § 1237, subd. (b).) Because the trial court
lacked jurisdiction to modify defendant’s final judgment to provide him with the relief he
now seeks under Assembly Bill 1261, the trial court’s failure to do so could not have
affected defendant’s substantial rights.
We therefore also dismiss any purported appeal from the trial court’s amendment
to the sentencing minutes.
DISPOSITION
The appeal is dismissed.
HULL, Acting P. J.
We concur:
KRAUSE, J.
BOULWARE EURIE, J.
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