People v. Douglas CA2/4 ( 2023 )

Filed 7/26/23 P. v. Douglas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE B321323
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA103562)
v.
RAJOHN CHARLES DOUGLAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lee W. Tsao, Judge. Dismissed.
Sally Patrone, 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, Steven D. Matthews and Michael
J. Wise, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________
In 2008, a jury convicted appellant Rajohn Charles
Douglas of three counts of robbery and two counts of
commercial burglary, with the finding that appellant
personally discharged a firearm during one of the
robbery-burglary incidents. Appellant was sentenced to an
aggregate term of 29 years, later modified to 28 years and four
months.
In 2019, the trial court granted appellant’s request to
reduce the two commercial burglary convictions to
misdemeanor petty thefts but denied his motion to dismiss the
firearm enhancement. The trial court’s partial grant of relief
did not affect the overall length of sentence, as sentence on the
two commercial burglary counts was previously stayed. On
appeal, this court affirmed the judgment, but ordered the
abstract of judgment modified to strike a one-year prior prison
term enhancement in light of new legislation invalidating such
enhancements.
In 2022, appellant filed two petitions in the trial court,
which are the subject of this consolidated appeal.
First, in January 2022, appellant filed a petition for
resentencing seeking the benefit of several new sentencing
laws; the petition was denied, as was appellant’s motion for
reconsideration. Appellant thereafter filed a notice of appeal
which culminated in the first case at issue in this appeal.
2
Second, in July 2022, appellant filed a petition to recall
his sentence, invoking Penal Code1 Section 1171.1 (now
§ 1172.75), which allows the California Department of
Corrections and Rehabilitation to request resentencing on
behalf of prisoners who are currently serving terms on
convictions that include any invalid one-year prior prison term
enhancements. After the trial court denied his petition,
appellant filed a notice of appeal which represents the second
case in this appeal.
As explained in this decision, the notice of appeal from
the first case is untimely, while appellant’s appeal in the
second case arises out of a petition that lacks any cognizable
claim; the trial court had previously struck the prior prison
term enhancement in full compliance with this court’s directive
on remand.
Accordingly, we dismiss this appeal in its entirety.
BACKGROUND
A. Procedural History2
1. Conviction and Direct Appeal
In 2008, a jury convicted appellant of three counts of
robbery (§ 211; counts 1, 2, 4) and two counts of commercial
1 All further undesignated statutory references are to the Penal
Code.
2 In light of our disposition in this case, we need not provide a
factual summary of the crimes underlying appellant’s conviction.
3
burglary (§ 459; counts 3 and 6), with the finding that he
personally discharged a firearm (§ 12022.53, subd. (c)) in
counts 4 and 6, and that a principal was armed with a firearm
(§ 12022, subd (a)(1)) in counts 1 through 3. In a bifurcated
proceeding, appellant admitted a prior prison term
enhancement (§ 667.5, subd. (b)), alleged as to counts 1
through 4.
The trial court sentenced appellant to an aggregate
sentence of 28 years, four months in state prison, as follows:
The court selected the robbery in count 4 as the base term and
imposed the upper term of five years on that count, plus 20
years for the section 12022.53 enhancement. The court then
imposed two consecutive one-year terms for the robberies in
counts 1 and 2, plus four months for the section 12022, subd.
(a)(1) enhancement.3 The court imposed a one-year
consecutive term for the section 667.5, subdivision (b) prior
prison enhancement in relation to count 2, but struck the
enhancement on the other counts. Finally, the court imposed
two-year terms on each of the commercial burglary counts, but
stayed imposition of sentence for both counts pursuant to
section 654.
In 2009, in an unpublished appellate opinion, we rejected
appellant’s claim that the evidence was insufficient to support
3 Although the initial sentence was 29 years, the trial court
subsequently issued a correction to reflect that the term on the section
12022(a)(1) enhancement was four months, as opposed to a full year.
This correction resulted in a modified aggregate sentence of 28 years and
four months.
4
his conviction on counts 1-3 and affirmed the judgment in full.
(People v. Douglas (June 23, 2009, B211221) [nonpub. opn.]
2009 Cal.App.Unpub.LEXIS 5042.)
2. Post-Conviction Resentencing Petitions and Appeals
In December 2017, appellant filed a petition under
Proposition 47 to reduce his burglary convictions to
misdemeanors. After the trial court summarily denied the
petition, we remanded for the court to conduct a Proposition 47
hearing. (People v. Douglas (Feb. 15, 2019, B288543)
[nonpub. opn.] (Douglas II).4 At the hearing, the trial court
granted appellant’s petition and reduced his commercial
burglary convictions to misdemeanor petty thefts. The court
sentenced appellant to 180 days on counts 3 and 6 with the
terms on both counts (once again) stayed pursuant to section
654, thereby leaving the length of appellant’s term unchanged.
At the Proposition 47 hearing, appellant also made an oral
motion to dismiss the firearm enhancement on his robbery
conviction in count 4. (§ 12022.53, subdivision (c).) The court
denied the motion.
4 Proposition 47, enacted by California voters in November 2014,
reduced certain felony theft-related offenses to misdemeanors and
created a procedure to allow defendants who previously suffered felony
convictions that are now classified as misdemeanors to petition the trial
court “to reduce their convictions to misdemeanors and to resentence
them, if they are still serving time on their convictions.” (Pen. Code,
§ 1170.18, subds. (a), (f); People v. Van Orden (2017) 9 Cal.App.5th 1277,
1282.)
5
On appeal, appellant contended the trial court abused its
discretion in denying his motion to strike his firearm
enhancement and further argued that the matter must be
remanded because the trial court was unaware that it could
also exercise the option of imposing a lesser, but uncharged,
firearm enhancement in lieu of simply dismissing the
enhancement. (People v. Douglas (June 26, 2020) B300438
[nonpub. opn.] (Douglas III).) We rejected both contentions,
noting that while there was currently a split in authority on
whether a trial court may impose uncharged, lesser
enhancements, the only authority on the issue at the time the
court ruled on appellant’s motion was in favor of such an
option. (Douglas III, supra, at pp. *6-8.) This, in conjunction
with the record of the proceedings, led us to conclude the trial
court was aware of the full scope of its discretion and that it
properly exercised that discretion. (Id. at pp. * 7-8.)
In the same appeal, we also agreed with the parties that
in light of newly enacted Senate Bill No. 136 (which restricts
imposition of a prior prison enhancement under section 667.5
to prior convictions for a sexually violent offense), the section
667.5 enhancement imposed in appellant’s case was no longer
valid. (Douglas, supra, at p. *8.) However, because the
maximum possible sentence was imposed, we found
resentencing unnecessary; we therefore struck the 667.5
enhancement and directed the trial court to prepare an
amended abstract of judgment reflecting the modification,
resulting in a sentence of 27 years, four months. (Id. at
pp. *8-9.)
6
Appellant filed a petition for review in the California
Supreme Court, which granted review on September 16, 2020,
with briefing deferred pending the decision in People v. Tirado,
S257658. (People v. Douglas, S263396 (Sept. 16, 2020)
[nonpub. order].) On April 20, 2022, review was dismissed in
light of the California Supreme Court’s decision in People v.
Tirado (2022) 12 Cal.5th 688 (Tirado).5 (People v. Douglas,
S263396 (Apr. 20, 2022) [nonpub. order].) Remittitur issued on
May 6, 2022.
B. Petitions at Issue in This Appeal
1. January 31, 2022, Petition and Reconsideration
Motion
On January 31, 2022, appellant filed a “Petition for
Resentencing Pursuant to California Penal Code §§ 1385 and
654” in light of changes made to these two provisions by Senate
Bill No. 81, and Assembly Bill No. 518. Appellant stated he
was entitled to the benefit of these new laws because his
conviction was not yet final in that (1) his case had been
“reopened on appeal” for application of Senate Bill No. 136;
and (2) his petition for review was currently pending in the
California Supreme Court.
5 In Tirado, the Court held that a trial court’s discretion to strike a
firearm enhancement under section 12022.53, includes the discretion to
impose a lesser uncharged enhancement (Tirado, supra, 12 Cal.5th at
p. 693, 700.)
7
On April 14, 2022, the trial court denied the petition.
The court concluded appellant’s sentence was final and he
cannot, therefore, benefit from any of the new laws cited in his
petition.
On June 1, 2022, appellant filed a motion for
reconsideration of his resentencing petition pursuant to Code
of Civil Procedure section 1008. In seeking reconsideration,
appellant noted that the remittitur in his appeal was issued on
May 26, 2022.6 Appellant stated that “[s]ince the Court of
Appeal struck the one-year prison prior (667.5(b)) petitioner's
case was sent back to the trial court for a resentencing
hearing, or the court may just correct the sentence and correct
the abstract of judgment by removing the one-year prior.”
On June 9, 2022, the trial court denied appellant’s
motion for reconsideration, and ordered the clerk to prepare an
amended abstract of judgment deleting the one-year
enhancement pursuant to section 667.5(b). The court noted
the resulting sentence was now 27 years, four months. On
June 10, 2022, a new abstract of judgment was issued
reflecting the changes ordered by the trial court.
On June 17, 2022, appellant filed a notice of appeal,
purporting to appeal the trial court’s June 9, 2022, order
denying his motion for reconsideration.
6 Appellant included as an exhibit a copy of a recent letter his
attorney sent to the trial court; the letter informed the trial court we had
struck the section 667.5 enhancement and noted the remittitur had now
issued in the appeal.
8
2. July 8, 2022, Petition
On July 8, 2022, appellant filed a petition to “Recall
Sentence Pursuant to Senate Bill No. 483 and Penal Code
Section 1171.1.” Appellant argued that when the trial court
struck the section 667.5 enhancement pursuant to this court’s
directive, it could have also conducted a full resentencing
hearing and applied any new laws in favor of appellant during
that hearing. On August 15, 2022, the trial court denied the
petition, noting that it had fully complied with this court’s
directive and no more was required.
On August 29, 2022, appellant filed a notice of appeal
from the trial court’s order. This appeal was initially filed
under Appeal No. B324140, but subsequently merged into the
instant appeal after this court granted appellant’s request to
consolidate both appeals.
DISCUSSION
A. The Appeal from the January 2022 Petition Is
Untimely
To the extent appellant had a right to file a petition in
the trial court seeking retroactive application of new statutes
to his case, the denial would be appealable as an order after
judgment affecting his substantial rights. (Pen. Code § 1237,
subd. (b); see, e.g., Teal v. Superior Court (2014) 60 Cal.4th
595, 599-601.) However, even assuming he had such a right
(an issue we do not decide), the notice of appeal is untimely,
9
and we therefore lack jurisdiction over the appeal from this
petition.
A criminal defendant seeking to appeal a post-judgment
order must file a notice of appeal “within 60 days after . . . the
making of the order.” (Cal. Rules of Court, rule 8.309(a).)
Under the prison-delivery rule, a notice of appeal is deemed
filed on the date a prisoner delivers the notice of appeal to
prison authorities. (In re Jordan (1992) 4 Cal.4th 116, 129
(Jordan).) A notice of appeal filed after the 60-day period is
“‘wholly ineffectual,’” and the appeal must be dismissed for
lack of jurisdiction. (People v. Mendez (1999) 19 Cal.4th 1084,
1094, (Mendez); accord, In re G.C. (2022) 8 Cal.5th 1119, 1127.)
Here, the trial court denied appellant’s January 2022
petition for resentencing on April 14, 2022, and he filed his
notice of appeal on June 17, 2022. The notice was signed and
dated by appellant on June 14, 2022. Thus, even using the
earliest possible date on record (i.e., the signature date)
appellant’s notice is one day beyond the jurisdictional 60-day
window. (Mendez, supra, 19 Cal.4th at p. 1094; People v.
Funches (1998) 67 Cal.App.4th 240, 243.)
In his reply brief, appellant acknowledges that his notice
of appeal was filed more than 60 days after the order denying
his petition but argues that since he “did not have access to a
calendar in state prison, . . . estimating 60 days as two months
after April 14, 2022 . . . should be deemed timely filed.”
However, the notice of appeal is a jurisdictional requirement
that “cannot be waived” and “‘“the appellate court has no
power to give relief, but must dismiss the appeal on motion or
10
on its own motion.”’” (In re G.C., supra, 8 Cal.5th at p. 1127;
Mendez, supra, 19 Cal.4th at p. 1094.)
Alternatively, appellant contends that his notice of
appeal was timely “because it was filed within 60 days after
the judge’s order denying the Motion for Reconsideration, so
the appeal should proceed.” In support of this assertion,
appellant cites Jordan, supra, 4 Cal.4th at p. 129 and In re
J.R. (1970) 5 Cal.App.3d 597 (J.R.). However, neither case
supports appellant’s position.
In Jordan, our high court simply concluded that a
defendant’s notice of appeal, signed and delivered to prison
authorities within the sixty-day period, was timely filed.
(Jordan, supra, 4 Cal.4th at pp. 120-121, 130.) The notice
itself was filed from an underlying criminal judgment with no
intervening motion for reconsideration. (Id. at pp. 120-121.)
As such, Jordan is of no help to appellant.
The same holds true with regard to appellant’s reliance
on J.R. In J.R., the appellant had been adjudged a ward of the
juvenile court by the presiding referee. Following that order,
appellant filed a petition for rehearing under a statutory
provision that allows a minor (or a parent or guardian) to file
for rehearing within ten days of the referee’s order. (J.R.,
supra, 5 Cal.App.3d at pp. 599, 600.) The juvenile court denied
the petition for rehearing. (Id. at p. 599.) On appeal, the
reviewing court concluded that because appellant’s petition for
rehearing was filed within ten days of the court’s original
order, the petition effectively tolled the period for appeal until
the petition was resolved. Since appellant filed a notice of
11
appeal 17 days after the juvenile court denied his petition for
rehearing, the notice was timely as to the underlying order
adjudging him to be a ward of the court. (Id. at pp. 600-601.)
Here, in rejecting appellant’s reconsideration motion, the
trial court stated that while it was unclear whether appellant
can utilize section 1008 of the Civil Code of Procedure in a
criminal case, section 1008 requires the motion to be filed
within 10 days after the relevant order; appellant, however,
filed his reconsideration motion six weeks after the trial court
denied his resentencing request. We agree with this analysis,
and as such, appellant’s motion could not toll the period for his
appeal.7 (J.R., supra, 5 Cal.App.3d at p. 600.)
Because the notice of appeal cannot be deemed timely
filed, this court lacks jurisdiction and the appeal must be
dismissed. (Mendez, supra, 19 Cal.4th at p. 1094; see also
People v. Funches, supra, 67 Cal.App.4th at p. 243.)
B. The Court Lacks Jurisdiction to Entertain
Appellant’s July 8, 2022, Petition
As previously indicated, on July 8, 2022, appellant filed a
petition seeking to invoke section 1171.1 (now section 1172.75)8
7 We note that appellant provides no argument to suggest his motion
for reconsideration, and the order denying it, created any free-standing or
independent basis for his appeal.
8 Effective June 30, 2022, the Legislature renumbered section 1171.1
to section 1172.75, with no substantive changes. (Stats. 2022, ch. 58,
§ 12; People v. Burgess (2022) 86 Cal.App.5th 375, 378, fn. 2 (Burgess).)
12
added to the Penal Code by Senate Bill No. 483. Senate Bill
No. 483 is related to Senate Bill No. 136 (applied by this court
in appellant’s prior appeal) in the following manner:
Effective January 1, 2020, Senate Bill No. 136 (2019–
2020 Reg. Sess.) (Stats. 2019, ch. 590) (Senate Bill 136)
amended section 667.5 by limiting the prior prison term
enhancement to only prior terms for sexually violent offenses.
(§ 667.5, subd. (b); Stats. 2019, ch. 590, § 1; People v. Jennings
(2019) 42 Cal.App.5th 664, 681.) Enhancements based on prior
prison terms served for other offenses became legally invalid.
(Id. at p. 682.) The amendment was to be applied to all cases
not yet final on January 1, 2020. (Id. at pp. 681–682.)
Later, in 2021, the Legislature enacted Senate Bill No.
483 (2021–2020 Reg. Sess.) (Senate Bill 483). This bill sought
to make the changes implemented by Senate Bill 136
retroactive to all persons serving a period of incarceration for
the repealed 667.5 enhancements, including those whose cases
were final. (Stats. 2021, ch. 728, § 1.) The legislation took
effect on January 1, 2022, and added former section 1171.1,
now section 1172.75, to the Penal Code. (Stats. 2021, ch. 728,
§ 3; Stats. 2022, ch. 58, § 12.)
Here, the trial court properly denied appellant’s petition.
First, under section 1172.75, it is the California Department of
Corrections that is tasked with the duty of identifying
prisoners who qualify for section 1172.5 relief and bringing
those prisoners to the attention of the sentencing court.
(Burgess, supra, 86 Cal.App.5th at pp. 379–381.) Section
1172.75 does not allow a prisoner, like appellant, to file his
13
own request for relief. (Burgess, supra, at pp. 381–382.)
Second, in appellant’s prior appeal, this court ordered the
section 667.5 prior prison term enhancement stricken from the
abstract of judgment, and the trial court, as noted in its order
denying the instant petition, fully complied with this court’s
directive. As such, appellant’s petition lacks any cognizable
basis for relief, leaving us without jurisdiction to entertain its
appeal. (Id. at pp. 379, 381-82; People v. King (2022) 77
Cal.App.5th 629, 639; People v. Fuimaono (2019) 32
Cal.App.5th 132, 135.)
CONCLUSION
For the reasons discussed above, this consolidated appeal
is dismissed in its entirety.9
9 To the extent appellant suggest that we treat his submissions to
this court as a petition for writ of habeas corpus, we decline to do so.
(People v. Chamizo (2019) 32 Cal.App.5th 696, 700-701.)
14
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
COLLINS, Acting P. J.
ZUKIN, J.
15