P. v. Chacon
Filed 7/8/13 P. v. Chacon CA2/6
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opinion has not been certified for publication or ordered published for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
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
FREDDIE CHACON
Defendant and Appellant.
THE PEOPLE
Plaintiff and Respondent,
v.
RAUL ALBERTO LOPEZ,
2d
Crim. No. B238877
(Super.
Ct. No. F210166)
(San
Luis Obispo County)
2d
Crim. No. 241416
(Super.
Ct. No. F2099900)
San
Luis Obispo County
Freddie Chacon and Raul
Alberto Lopez appeal post-judgment habeas orders reducing their
life-without-possibility-of-parole sentences to life with parole for
special findings that they inflicted bodily harm and exposed the victim to a
substantial likelihood of death. (Pen.
Code, § 209, subd. (a).)
name="_ftnref1" title="">[1] Chacon (age 17) and Lopez (age 16) were
juveniles when they committed the offense.
The United States Supreme Court has subsequently held that the sentences
to life without the possibility of parole violates the
(2010) 560 U.S.
__ [176 L.Ed.2d 825 ] (Graham).)
Appellants contend that the trial court abused its discretion in not
ordering new trials or granting probation.
We affirm.
Procedural History
In
1993, appellants attempted to escape from the
by kidnapping the facility librarian, Ava Goldman. Appellants demanded a truck and hit Goldman
in the face, choked her unconscious, stabbed her in the stomach, and poked and
cut her with shanks. Roy Victorino tried
to rescue Goldman but Lopez swung at him with a shank, puncturing Victorino's
stomach and cutting his wrist.
Appellants
entered pleas of not guilty, waived jury trial, and submitted on the
aggravated kidnapping for ransom with special findings that they inflicted
bodily harm, exposed the victim to a
substantial likelihood of death, and personally used a dangerous or deadly
weapon. (§ 209, subd. (a); 12022, subd.
(b).)
Appellants were
sentenced to life without possibility of parole (LWOP) on the kidnapping for
ransom count, plus one year on the weapon enhancement. (§§ 209, subd. (a);
12022, subd. (b).) On the counts for
escape by means of force and violence, two counts of assault with a deadly
weapon, and extortion, the trial court imposed a consecutive nine year sentence
and ordered that it be served before the LWOP sentence. (§669.)
In 1995, we vacated the
convictions for attempted kidnapping and
false imprisonment, stayed the sentences for escape, assault with a deadly
weapon and extortion (§ 654), reduced the nine-year sentence to five years,
and affirmed the judgment as modified to provide that the five-year sentence be
served before the LWOP sentence. (People
v. Chacon (1995) 37 Cal.App.4th 52, 58.)
We concluded that the sentences were lawfully predicated on the heinous
nature of the crime and appellant's individualized culpability, that there was
no likelihood that the trial court would impose a more lenient sentence, and
that a "[r]emand for resentencing would exalt substance over form.
[Citation.]" (Id., at p. 67.)
Graham v. Florida
In 2010, the
States Supreme Court in Graham v. Florida, supra, 560 U.S. __
[179 L.Ed.2d 825] (Graham) determined that sentencing a juvenile to life
without the possibility of parole for a nonhomicide offense violates the Eight
Amendment's prohibition against cruel and unusual punishment. Relying on Graham, appellants filed
habeas petitions to vacate the LWOP sentences and be resentenced. The San Luis Obispo County District Attorney
agreed that Graham controlled and "that the matter should
be returned to the sentencing court (in this case that is Judge Michael Duffy)
and that court sentence [appellants] to life in prison with the possibility of
parole pursuant to Graham."
commissioner "granted" the habeas petitions "to the extent that
it orders the matters returned to the trial court for re-sentencing of the
Petitioner[s] consistent with Graham v. Florida (2010) 130 S.Ct.
2011 [176 L.Ed.2d 825]."
Before appellants were
resentenced, Lopez filed a motion for a supplemental probation report and
motions for new trial and to withdraw his 1994 jury trial waiver. Lopez claimed that the habeas order restored
him to his original position, as if he had never been sentenced, and that he
was entitled to a new trial because his waiver of jury trial/right of
confrontation was based on the "threat" of a LWOP sentence that has
since been deemed unconstitutional.
Chacon filed similar
motions and filed a Code of Civil Procedure section 170.6 peremptory challenge
to reassign the motions to a different judge.
Judge Michael Duffy, the trial judge who heard the trial and imposed the
original sentence, denied the peremptory affidavit on the ground it was
untimely. The trial court also denied the motions to withdraw the jury trial
waivers and new trial motions, ordered a supplemental probation report for
Lopez, and resentenced Lopez and Chacon to life with parole.
Limited Scope of Habeas Relief
In a habeas proceeding,
the order to show cause institutes proceedings to determine what issues of fact
are to be decided. (
re Hochberg (1970) 2 Cal.3d 870, 875-876, fn. 4.)
Because the order to show cause delineates the scope of the proceeding,
the habeas petitioner cannot raise additional claims in the traverse. (People v. Duvall (1995) 9 Cal.4th
464, 478; In re Clark (1993) 5 Cal.4th 750, 781, fn. 16.)
"Under this process, the issues to be addressed may not extend
beyond the claims in the habeas petition."
(Board of Prison Terms v. Superior Court (Ngo) (2005) 130 Cal.App.4th 1212, 1235.)
Here the order to show
cause directed the San Luis Obispo County District Attorney to show cause why
writs of habeas corpus should not issue ordering a resentencing to life in
prison with the possibility of parole pursuant to Graham. Thereafter,
the district attorney conceded that the
LWOP sentences should be reduced to life sentences in accordance with
In the habeas petitions
appellants did not challenge the 1994 jury trial waivers or request a new
trial. Nor are these issues mentioned in
the order to show cause. "This
process of defining the issues is important because issues not raised in the
pleadings need not be addressed.
[Citation.]" (People v. Duvall, supra, 9 Cal.4th at
p 478.)
It limits the trial court's power and authority to fashion a
remedy. (§ 1484;
of Prison Terms v. Superior Court (Ngo), supra, 130 Cal.App.4th at p.
1236.) Here the habeas petitions are
limited to the LWOP component of the sentence which is excessive under Graham
and may be dealt with without disturbing the valid portion of the
sentence. (See e.g., In re Seeley (1946)
29 Cal.2d 294, 302-303.)
to Withdraw Jury Trial Waiver and New Trial Motions
Appellants
claim that the trial court erred in denying their motions to withdraw the 1994
jury-trial waivers and motions for new trial.
As discussed, the motions were outside the scope of the habeas petitions
and properly denied. (Ibid.;
re Clark, supra, 5 Cal.4th at p. 781, fn. 16.) On
a remand for resentencing, the trial court is precluded from hearing a motion
for new trial or motion to vacate a plea.
(See e.g., People v. Pineda (1967) 253
Cal.App.2d 443, 453; People v. Oppenheimer (1965) 236
Cal.App.2d 863, 866 [trial court lacked jurisdiction to entertain new trial
motion after case remanded to vacate order granting probation and correct
sentencing errors].)
Peremptory Challenge
Judge Duffy erred in not transferring the motion for new trial and motion to
withdraw the jury-trial waivers to a different judge. (Code Civ. Proc., § 170.6, subd.
(a)(2).) Judge Duffy ruled that the
peremptory challenge was untimely because the matter was assigned to his
department for all purposes five months earlier. The ruling is correct and may be reviewed
only by writ of mandate. (Code Civ.
Proc., §§ 170.6, subd. (a)(2); 170.3, subd. (d).) Appellants are precluded from challenging the
order in this appeal. (
v. Hull (1991) 1 Cal.4th 266, 268.)
Waiver aside, a Code of Civil Procedure section 170.6 peremptory
challenge does not lie on a remand for resentencing. (See Peracchi v. Superior Court (2003) 30 Cal.4th
1245 1249.) "[W]hen resentencing is
all that is required, the parties are not placed in the same position as if
there had been no trial." (Id.,
at p. 1257.)
Supplemental Probation Report
Chacon asserts that the
trial court abused its discretion in denying his motion for a supplemental
probation report. The argument is based
on the theory that the habeas order placed Chacon in the same position as if he
had never been sentenced. (See e.g.,
re Cortez (1971) 6 Cal.3d 78, 88 [on resentencing defendant entitled to all
procedures and rights normally available before pronouncement of judgment];
Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744 [resentencing
hearing includes the right to a current probation report].) But that is not what happened.
Habeas relief was
granted on the LWOP component of the sentence, not the weapon use enhancement
or the determinate five year sentence.
The order to show cause directed the district attorney to show cause why
appellants should not be resentenced to life with the possibility of parole
consistent with Graham.
Appellants cite no authority that the trial court
split the sentence by imposing a prison sentence on some offenses and granting
probation on the aggravated kidnapping count.
(See People v. Mendosa (1918) 178 Cal.
509, 511 [defendant cannot be sentenced to both state prison and released on
probation in the same case]; People v. Marks (1927) 83
Cal.App. 370, 375-376 [same].)
In the first appeal,
appellants' determinate sentence was reduced from nine years to five
years. Having received the benefit of
the sentence modification, appellants are precluded from claiming that the
habeas order vacates the entire sentence (i.e., both the determinate and
indeterminate sentences) and places them in the position as if they had never
been sentenced.
name="_ftnref4" title="">[4] To hold otherwise, would undermine the strong
public policy favoring the finality of judgments. (In re Clark, supra, 5 Cal.4th at p.
770.) "Were we to come to
appellant[s'] aid at this late hour, . . . [w]e would be encouraging a further
expenditure of time and scarce resources chasing the ever elusive ideal of
'perfect justice.' [Citation.]" (
v. Lyons (2009) 178 Cal.App.4th 1355, 1363.)
Due Process
Appellants
argue that their due process rights were violated because the trial court
failed to exercise an informed discretion at resentencing. (People v. Belmontes (1983) 34 Cal.3d
335, 348, fn. 8.) Appellants complain
that the trial court "converted" the LWOP sentence to a
parole-eligible life term and declined to consider probation. (See People v. Sandoval (2007) 41
Cal.4th 825, 847-848 [trial court's failure to recognize sentencing discretion
is itself, an abuse of discretion; People v. Tatlis (1991) 230
Cal.App.3d 1266, 1274 [failure to exercise informed sentencing discretion and
ordering a supplemental probation report an abuse of discretion].)
Appellants
waived the due process issue by not
objecting on that ground and are precluded from raising the issue for the first
time on appeal. (See e.g., United
States v. Olano (1993) 507 U.S. 725, 731-732 [123 L.Ed.2d 508, 517-518; People
v. Sanders (1995) 11 Cal.4th 475, 526, fn. 17.) Although section 1203, subdivision (e) provides that defendants
convicted of kidnapping with a weapon may receive probation "in unusual
cases," probation is not a constitutional right. (See People v. Howard (1997) 16
Cal.4th 1081, 1092.) Other than
reduce the LWOP sentences to life with possibility of parole, the habeas order
did not require the trial court to consider other sentencing options.
Conclusion
The
order to show cause limited the scope of the habeas hearing. It authorized the trial court to order parole
eligibility. Consistent with Graham,
the trial court reduced the LWOP sentences to life with possibility of parole,
which rendered appellants eligible for parole by operation of law. (See § 3046, subd. (a)) [prisoner serving
life sentence is eligible for parole in seven years].) The parole eligibility aspect of the appeal
is now moot because appellants were granted full Eighth Amendment relief. Chacon's acknowledges that his parole hearing
date is set for July 30, 2013. He does
not contend that the date set for the hearing is constitutionally
defective. A June 14, 2012 Board of
Prison Terms Notice of Hearing in the superior court file indicates that
Lopez's parole hearing was scheduled for August 29, 2012. (See Evid. Code, §§ 452, subd. (d); 459
[appellate court may take judicial notice of superior court file].)
Even
if we were to assume that the trial court abused its discretion in not ordering
a supplemental probation report, any error was harmless.
v. Dobbins (2005) 127 Cal.App.4th
176, 182 [no constitutional right to supplemental probation report].) The trial court stated that "if I had
the discretion to sentence to something less than life, I don't believe I would
do so." The seasoned trial court
made an "informed" sentence.
Remanding the matter back for further proceedings would be an idle act. "Despite the expanded scope of the great
writ on California, the principle endures that habeas corpus will not lie to
correct procedural error which is not of fundamental jurisdictional character.
[Citations.]" (In re Sands
(1977) 18 Cal.3d 851, 857.)
The
judgments (habeas orders modifying LWOP sentences to sentences of life with
possibility of parole) are affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
>
Michael L. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Sidley
Austin, Douglas A. Axel, Christopher S. Munsey.
Sidley Austin and Jaime A. Bartlett, for Freddy Chacon, Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.
Richard
A. Holly, under appointment by the Court of Appeal, for Raul A. Lopez.,
Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code
unless otherwise stated.
name="_ftn2" title="">[2] Appellants were also convicted of escape by
means of force and violence (Welf. & Inst. Code, § 1768.7, subd. (b)),
two counts of assault with a deadly weapon (§ 245, subd. (a)(1)),
extortion (§ 520), false imprisonment of a hostage and use of the victim
as shield (§§ 210.5, 236), attempted kidnapping (§§ 664, 207, subd.
(a)), and false imprisonment by violence (§ 236) with use of a deadly
weapon or dangerous weapon enhancements (§ 12022, subd. (b).)
