Filed 5/1/18 P. v. Walker CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
THELMEAS WALKER,
Defendant and Appellant.

A151520

(Alameda County
Super. Ct. No. C166404)


This is the second appeal before this court arising out of defendant Thelmeas Walker’s conviction on one count of forcible rape during a residential burglary, enhanced for personal use of a firearm. Defendant received a prison term of 25 years to life for the forcible rape count, with a consecutive 10-year term for the firearm enhancement. On October 30, 2014, this court affirmed the judgment in a nonpublished decision, and the California Supreme Court thereafter denied his request for review. (People v. Walker (Oct. 30, 2014, A134924) [nonpub. opn.], review den. Jan. 14, 2015, S222982.)
On March 30, 2017, defendant, representing himself, filed a motion based on a newly enacted voter initiative to “Set Aside Juvenile Offender’s Conviction and Remand All Further Proceedings to Juvenile Court Unless People Motions to Transfer Case to Adult Court, and Juvenile Court Orders Such Transfer [Pub. Saf. Rehab. Act of 2016; Cal. Const., Art. I, Sec. 32.].” The trial court thereafter denied his motion on the ground that it lacked jurisdiction to act in a case where judgment had long since become final.
After defendant filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende) in which she raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Defendant exercised his right to file a supplemental letter brief on March 7, 2018. For reasons set forth below, we agree with counsel that no arguable issue exists on appeal. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As mentioned above, on March 16, 2012, defendant was sentenced to 25 years to life in prison for forcible rape during a residential burglary, plus 10 years for personal use of a firearm during this crime. We affirmed this judgment on October 30, 2014, after rejecting his Eighth Amendment challenge under People v. Caballero (2012) 55 Cal.4th 262 and Graham v. Florida (2010) 560 U.S. 48. The California Supreme Court then denied review and the remittitur issued on January 21, 2015.
On February 22, 2016, defendant filed a timely petition for habeas corpus in the United States District Court for the Northern District of California.
On November 8, 2016, the electorate approved Proposition 57, the Public Safety and Rehabilitation Act of 2016, which abolished the direct filing of criminal charges against juveniles in adult criminal court. Shortly thereafter, defendant requested in writing to the Superior Court for the County of Alameda that counsel be appointed to assist him in seeking relief under Proposition 57. The trial court denied his request for appointment of counsel on January 5, 2017. On the same date, defendant filed a motion in federal court seeking to stay his habeas corpus petition in order to exhaust new state remedies under Proposition 57. The federal court granted defendant the stay on February 22, 2017, giving him 60 days to file a state action under Proposition 57.
Thus, on March 30, 2017, defendant filed a pro per motion for Proposition 57 relief entitled “Motion to Set Aside Juvenile Offender’s Conviction and Remand All Further Proceedings to Juvenile Court Unless People Motions to Transfer Case to Adult Court, and Juvenile Court Orders Such Transfer [Pub. Saf. Rehab. Act of 2016; Cal. Const., Art. I, Sec. 32.].”
The trial court denied defendant’s motion on April 11, 2017, reasoning as follows: “This court has no jurisdiction to entertain Defendant’s motion because there are no legal proceedings currently pending before this court. (See People v. Picklesimer (2010) 48 Cal.4th 330, 337 [after a judgment becomes final, there is nothing pending to which a motion or request may attach].) Here, Defendant’s judgment was final in 2014. An ex-parte motion is not an independent remedy; it is ancillary to an on-going proceeding. [Citation.] [¶] Even if this court had jurisdiction to rule on Defendant’s motion, the court would conclude that Defendant’s conviction and sentence were not affected by the passage of Proposition 57 because the voters did not intend Proposition 57 to apply retroactively. (People v. Cervantes (2017) 9 Cal.App.5th 569 . . . ; People v. Mendoza (Mar. 30, 2017, H039705) __ Cal.5th __ . . . .)”
Defendant timely appealed the trial court’s ruling on June 6, 2017.
DISCUSSION
As mentioned above, neither appointed counsel nor defendant has identified any actual issue for our review. Upon our own independent review of the entire record, we agree no actual issue exists. (People v. Wende, supra, 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738, 744.) Defendant filed the underlying motion in 2017, several years after his conviction and sentence became final in 2014. Nevertheless, defendant raises a new challenge to his sentence pursuant to Proposition 57, which was approved on November 8, 2016, and abolished the direct filing of criminal charges against juveniles in adult criminal court. Undisputedly, defendant was 16 years old at the time of his crime, and was tried and convicted in adult court. Thus, according to defendant, Proposition 57 applies to him because he was a minor over age 14 at the time of his offense and because his state court remedies have not been exhausted. The trial court disagreed, finding no jurisdiction to modify the judgment in defendant’s case. The trial court was correct.
Recent authority, People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (hereinafter, Lara), holds: “The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, [In re] Estrada’s [(1965) 63 Cal.2d 740] inference of retroactivity applies. As nothing in Proposition 57’s text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (4 Cal.5th at pp. 303–304, italics added.) As made clear in this quoted passage, Lara’s retroactivity rule does not apply to defendant in our case because, unlike the defendant in Lara, his conviction and sentence had in fact become a final judgment. (People v. Amons (2005) 125 Cal.App.4th 855, 869 [trial court has “no ‘power to modify an imposed sentence, long ago final in terms of appealability’ ”]; People v. Picklesimer, supra, 48 Cal.4th at p. 337 [“ ‘ “ ‘a motion relates to some question collateral to the main object of the action and is connected with, and dependent on, the principal remedy.’ ” [Citation.] In most cases, after the judgment has become final, there is nothing pending to which a motion may attach’ ”].) Accordingly, Proposition 57 provides defendant no relief on appeal.
As stated above, defendant was also informed of, and exercised, his right to file a supplemental brief in this appeal, which we have considered. Thus, having ensured defendant has received adequate and effective appellate review, we affirm. (People v. Kelly, supra, 40 Cal.4th at pp. 109, 112–113.)
DISPOSITION
The post-judgment order is affirmed.


_________________________
Jenkins, J.


We concur:


_________________________
McGuiness, Acting P.J.*


_________________________
Siggins, J.