P. v. Boggess
Filed 7/2/12
P. v. Boggess 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
(El Dorado)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL DUANE
BOGGESS,
Defendant and Appellant.
C069170
(Super. Ct. No. P02CRF0403)
In
this case, defendant Daniel Duane Boggess is trying to work the system. He did not say one word when present at a
state court appearance where the court, the prosecutor, and his newly appointed
attorney agreed to set his resentencing
hearing for a date past the 30-day deadline imposed by a federal court
within which to resentence defendant.
The next day following the state court appearance (which was now the
31st day), defendant wrote to the federal
court that the state court had not complied with the deadline.
On
defendant’s appeal in this court from the state court resentencing that took
place on the 38th day (which was the day the state court first learned of the
federal court’s deadline), we hold defendant forfeited his argument that the
state court had no jurisdiction to resentence him. He had the chance to object on the 30th day
but chose not to.
FACTUAL AND PROCEDURAL BACKGROUND
On
June 20, 2011, a federal court granted defendant’s petition for writ of habeas
corpus because the 10-year upper term sentence imposed by a state court based
on factors not found true by a jury violated the
resentence defendant within 30 days of the federal court’s order. The federal court further stated that if the
state court failed to do so, then defendant’s sentence would be reduced to
eight years.
Defendant
was brought to state court on July 20, which was the 30th day. At that court appearance, defendant said
nothing when the state court, the prosecutor, and his attorney set his
resentencing for August 3. The court and
the parties stated they needed to review the lengthy case file.
On
July 21, defendant on his own wrote the federal court that the state court had
failed to comply with the 30-day deadline.
On
the morning of July 28, the state court and defense counsel learned of the
deadline when they received from the district attorney’s office a copy of the
federal court order. That afternoon,
with defendant present, the state court held the resentencing hearing and
reimposed the 10-year sentence.
Defendant filed a timely appeal from the resentencing hearing.
Thereafter,
defendant filed on his own in federal court a motion for reconsideration of the
state court sentence, claiming the state court’s resentencing was untimely.
DISCUSSION
In
this court, defendant contends his sentence must be reduced to eight years
because the state court failed to resentence him within the 30-day
deadline. This contention is forfeited. “In essence, claims deemed [forfeited] on
appeal involve sentences which, though otherwise permitted by law, were imposed
in a procedurally or factually flawed manner.â€
(People v. Scott (1994) 9
Cal.4th 331, 354.) “[T]he ‘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. [Citations.]†(Ibid.) “[A] sentence is generally ‘unauthorized’
where it could not lawfully be imposed under any circumstance in the particular
case.†(Ibid.)
Here,
the 10-year sentence could have lawfully been imposed within the 30-day
deadline. Defendant was present in court
on the 30th day when the parties selected a date for the resentencing hearing. Despite knowing the deadline, defendant said
nothing in state court. Instead, in an
attempt to play “gotcha†with the state court, he wrote to the federal court
the next day that the state court had not complied with the federal court order. By not objecting in state court when he had
the chance to do so, defendant has forfeited his contention on appeal.
DISPOSITION
The
judgment is affirmed.
ROBIE , Acting P. J.
We concur:
MURRAY , J.
HOCH , J.
name="_ftn1" title="">[1] At that hearing, nobody
mentioned the federal court order that required resentencing by July 20. The state court was unaware of the order
because the federal court never served the state court with the notice. The defense had not been served with the
order either. The prosecutor was a
different prosecutor than the one who had made the motion for removal of
defendant for resentencing. The motion
for removal simply mentioned that removal was necessary for resentencing
proceedings. The motion did not mention
the federal court order. Therefore, at
the July 20 appearance, only defendant was aware of the 30-day deadline.
name="_ftn2" title="">[2] We grant respondent’s
request for judicial notice of the federal court proceedings, which are still
ongoing.
