LEWIS v. PEOPLE

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Court of Appeal, Second District, Division 2, California.

Robert Kenneth LEWIS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The PEOPLE, Real Party in Interest.

No. B115040.

Decided: January 09, 1998

Michael P. Judge, Public Defender, Vincent Milone and Albert J. Menaster, Deputy Public Defenders, for Petitioner. No appearance for Respondent. Gil Garcetti, District Attorney, Brent Riggs and Brentford J. Ferreira, Deputy District Attorneys, for Real Party in Interest.

Petitioner seeks a writ of mandate directing the superior court to issue an order directing the clerk of the superior court to accept for filing petitioner's notice of appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was sentenced to 25 years to life in prison under the Three Strikes law.   Thereafter, he filed in the superior court a habeas corpus petition to have his sentence reconsidered in light of People v. Superior Court (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero ).   The superior court found a prima facie case under Romero, issued an order to show cause, and conducted a sentencing rehearing.   The trial court denied the request to dismiss any of petitioner's prior convictions.

Petitioner's counsel prepared a notice of appeal from the denial of his request to dismiss petitioner's prior convictions.   Five days later, the clerk of the superior court acknowledged receipt of the notice of appeal, but rejected the notice, stating, “Appeal of denial of Habeas Corpus is not appealable at Superior Court.   The correct remedy would be to direct a writ to the Court of Appeal.”

Petitioner then filed this petition for writ of mandate.

II. CONTENTIONS

Petitioner contends that the superior court “clerk is not empowered to decide whether an order is appealable or not,” and that in any event, “a defendant has the right to appeal from resentencing after issuance of an order to show cause as an order after judgment.”

III. DISCUSSION

A. A Court Clerk May Not Determine the Appealability of an Order

 “It has uniformly been held that ordinarily the clerk of a court is but a ministerial officer, and is clothed with no judicial powers.”   (People v. Kuder (1928) 90 Cal.App. 594, 600, 266 P. 337;  Lane v. Pellissier (1929) 208 Cal. 590, 593, 283 P. 810;  see also Muller v. Municipal Court (1959) 176 Cal.App.2d 156, 162, 1 Cal.Rptr. 207.)  “The clerk may not perform any purely judicial functions unless specifically authorized by statute.”  (12 Cal.Jur.3d, Certiorari § 13, p. 228.)

 The decision as to whether an arguably appealable order is in fact appealable is a judicial function.   Thus, the clerk should not have refused to accept the appeal.   The proper procedure was to accept the notice of appeal.   The issue of appealability could then have been dealt with by motion to dismiss, or on this court's own motion.1

B. The Order Is Appealable

Prior to 1927, neither the People nor the petitioner could obtain review of a superior court decision denying or granting relief in a habeas corpus case.  (Matter of Zany (1913) 164 Cal. 724, 726, 130 P. 710.)

In Zany, supra, the petitioner sought to gain review in the Supreme Court of a Court of Appeal decision in a habeas corpus matter by resorting to two provisions of the California Constitution.   The first stated that the supreme court “ ‘shall also have appellate jurisdiction in all cases, matters and proceedings pending before a district court of appeal which shall be ordered by the supreme court to be transferred to itself for hearing and decision as hereinafter provided.’ ”   The second stated that the “supreme court shall have power ․ to order any cause pending before a district court of appeal to be heard and determined by the supreme court.”  (Id. at p. 728, 130 P. 710.)   Our Supreme Court held that neither of these provisions of the constitution applied to habeas corpus proceedings, which are essentially sui generis.   (Id. at pp. 728-730, 130 P. 710.)

In 1927, Penal Code section 1506 2 was enacted.   It provides that while no appeal lies from an order denying habeas corpus relief in a superior court, the People may appeal from an order granting a habeas petition.  (See In re Hochberg (1970) 2 Cal.3d 870, 875-876, fn. 4, 87 Cal.Rptr. 681, 471 P.2d 1.)

Petitioner filed a habeas corpus petition under the authority of Romero which specifically provides for a habeas corpus proceeding when an appeal is not pending.  “Our holding, which relates only to sentencing, is fully retroactive.  [Citations.]   A defendant serving a sentence under the Three Strikes law [citation] imposed by a court that misunderstood the scope of its discretion to strike prior felony conviction allegations in furtherance of justice pursuant to section 1385(a), may raise the issue on appeal, or, if relief on appeal is no longer available, may file a petition for habeas corpus to secure reconsideration of the sentence.   Such a petition should be filed in the sentencing court.  [Citation.]   Such a petition may be summarily denied if the record shows that the sentencing court was aware that it possessed the discretion to strike prior felony conviction allegations without the concurrence of the prosecuting attorney and did not strike the allegations, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.  [Citation.]”  (Romero, supra, 13 Cal.4th 497, 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.)

Had the Romero court stated that the persons sentenced under the Three Strikes law could bring a writ of error coram nobis then an appeal clearly would lie.   As stated in People v. Griggs (1967) 67 Cal.2d 314, 61 Cal.Rptr. 641, 431 P.2d 225, “We have held that the motion to set aside the judgment was a petition for coram nobis.   Had it been a petition for habeas corpus the order denying it would have been nonappealable [citations], and the order could have been challenged only by filing a new petition in the next higher court.”  (Id. at p. 317, 61 Cal.Rptr. 641, 431 P.2d 225.)

The People conclude that because the Romero court held that persons sentenced under the Three Strikes law could bring a habeas petition rather than a writ of error coram nobis, petitioner's appeal will not lie.

 Petitioner, citing People v. Wax (1972) 24 Cal.App.3d 302, 304, 101 Cal.Rptr. 289 (Wax ), claims that in the limited circumstance of the issuance of an order to show cause, followed by reimposition of the previously imposed sentence, the defendant has a right to appeal the denial of the habeas corpus petition as an order after judgment affecting the substantial rights of the defendant.  (Ibid.)

In 1968, the Wax defendant was sentenced to state prison for a drug violation.  (Wax, supra, 24 Cal.App.3d at p. 304, 101 Cal.Rptr. 289.)   In 1970, our Supreme Court, in People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 (Tenorio), struck down Health and Safety Code former section 11718 which purported to preclude a court from dismissing a prior conviction without consent of the prosecutor.3

While in prison, the Wax defendant, citing Tenorio, filed a petition for writ of habeas corpus in the superior court seeking to have the allegation of a prior conviction, found to be true at the time of trial, stricken from the record.   While three priors were alleged, there was no disposition made of the other two.   A hearing was held before the same judge that tried the case.   The defendant was represented by a deputy public defender.   At the latter's request the court read and considered the cumulative case summary and the probation report which had been previously filed.   After indicating that there was nothing sufficiently unusual about defendant's case to justify the striking of the prior felony narcotic conviction, the writ was denied.   The defendant appealed from the order of denial.  (Wax, supra, 24 Cal.App.3d at p. 304, 101 Cal.Rptr. 289.)

The appellate court, citing section 1237, subdivision (b),4 held that the “appeal lies,” because it was “an appeal from an order made after judgment and affecting the substantial rights of defendant.”  (Wax, supra, 24 Cal.App.3d at p. 304, 101 Cal.Rptr. 289.)

Romero, like Tenorio, invalidated a statute purporting to preclude a court from dismissing a prior conviction without approval of the prosecutor.   Romero, like Tenorio, provided for habeas corpus relief for defendants restrained under the applicable statute.   Thus, if Wax is correctly decided, an appeal lies from the order denying petitioner's habeas petition.

Not surprisingly, the People contend that the Wax case “presents yet another example of the improper construction of habeas corpus law.”   We disagree.

In In re Caffey (1968) 68 Cal.2d 762, 69 Cal.Rptr. 93, 441 P.2d 933, the Supreme Court entertained a habeas petition attacking the validity of petitioner's prior convictions.   In reciting the procedural history of the case, the Supreme Court noted, “The San Francisco Superior Court declined to entertain the proceeding, apparently on the erroneous ground that the San Luis Obispo Superior Court had no power to transfer the proceeding.   The sentencing court, however, must respect a transfer of a habeas corpus proceeding from the superior court having territorial habeas corpus jurisdiction when that court grants the petition to permit reconsideration of the sentence.   The sentencing court must conduct an evidentiary hearing if it determines that such a hearing is necessary and must redetermine the sentence in accordanc [sic] with its findings.   Its order will be appealable as an ‘order made after judgment, affecting the substantial rights' of the defendant or the People.  [Citations.]”  (Id. at p. 765, fn. 3, 69 Cal.Rptr. 93, 441 P.2d 933.)

In People v. Benn (1972) 7 Cal.3d 530, 102 Cal.Rptr. 593, 498 P.2d 433, the defendant filed a petition in the superior court seeking to have two prior convictions that were considered when he was sentenced stricken, on the ground that the portion of Health and Safety Code former section 11718 that prevented the court from striking such prior convictions unless such a motion was made by the district attorney had been held to violate the constitutional requirement of separation of powers, and that such unconstitutional procedure was in force at the time he was sentenced.   The court found that one of the defendant's prior convictions was a misdemeanor, and ordered that conviction stricken, but refused to strike another conviction found to be a felony, or to consider any evidence relating thereto, on the ground that its discretion was limited to a determination of whether the prior convictions were misdemeanors or felonies, and that it had no power to strike prior felony convictions under Health and Safety Code former section 11718.  (Id. at pp. 532-533, 102 Cal.Rptr. 593, 498 P.2d 433.)   On defendant's appeal from the judgment resentencing him, the Supreme Court reversed, with directions to grant defendant a new hearing in accordance with the views and procedures expressed by the court.   In reaching its decision, the Supreme Court noted the appeal in Wax, and held that the appellate court was “correct in ruling that there was no failure to exercise judicial discretionary power.”  (People v. Benn, supra, 7 Cal.3d at p. 534, fn. 5, 102 Cal.Rptr. 593, 498 P.2d 433.) Although the Supreme Court did not discuss the propriety of the appeal taken in Wax, neither did it hold that such an appeal is forbidden.

 According to the People, section 1506, which was enacted in 1927 and is specific to habeas corpus proceedings, controls over the more general provisions of section 1237 which was enacted in 1872.  (See Lyons v. Municipal Court (1977) 75 Cal.App.3d 829, 839, 142 Cal.Rptr. 449 [citing the general rule that “ ‘ “where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.   Where the special statute is later it will be regarded as an exception to or qualification of the prior general one;  and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.” ’ ”].) However, the “special” versus “general” rule is simply an aid to proper construction of a statute.  (See In re Frank F. (1979) 90 Cal.App.3d 383, 386, 153 Cal.Rptr. 375.)   We believe the statutes can be reconciled.   If the trial court summarily denies a defendant's Romero habeas petition, pursuant to section 1506, no appeal lies from that order.   However, if the trial court finds probable merit in the petition, issues an order to show cause, and conducts a sentencing rehearing, the sentencing decision must be considered as an order after judgment affecting the substantial rights of the parties, and thus appeal of the decision under section 1237 will lie.

Retention of the Wax rule will not open the floodgates to hordes of appeals.   The Supreme Court has recently rejected the rule formulated in In re Cortez, supra, 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819, which compelled a trial court to return a defendant from prison for resentencing, whenever the petitioner showed he or she was in prison under the statute declared unconstitutional.   The Supreme Court has stated that a trial court need not order a defendant returned for a hearing on a habeas corpus petition merely because the defendant is in prison on a Three Strikes case;  such a hearing is required only if the trial court finds the petition has probable merit.   (People v. Fuhrman (1997) 16 Cal.4th 930, 946, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)

The Supreme Court noted in Fuhrman, “Unlike the procedure prescribed in In re Cortez (1971) 6 Cal.3d 78, 88-89, 98 Cal.Rptr. 307, 490 P.2d 819, with regard to persons seeking relief on habeas corpus under this court's then recent decision in [Tenorio ], we do not believe that a new sentencing hearing is required in every case in which a defendant was sentenced under the Three Strikes law prior to our decision in Romero and where the record is silent as to whether the trial court misunderstood the scope of its discretion under section 1385.   In the present context, we conclude that a defendant's rights will be fully and adequately protected by affording the defendant an opportunity to file a petition for writ of habeas corpus in the sentencing court setting forth the circumstances that the defendant contends warrant the striking of one or more prior convictions in furtherance of justice under section 1385, and by having the sentencing court issue an order to show cause if that court finds that the petition has possible merit.  [Citation.]”   (People v. Fuhrman, supra, 16 Cal.4th at p. 946, fn. 10, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)   Thus, not every defendant in prison on a Three Strikes case who files a habeas petition will be entitled to return from prison for a hearing.   Only those few who can show possible merit and receive a sentencing rehearing are so entitled.   Review by appeal, we conclude, is appropriate as to these few.

IV. DISPOSITION

Let a writ of mandate issue directing the respondent court to issue an order directing the clerk of the superior court to accept for filing the notice of appeal filed March 7, 1997.

FOOTNOTES

1.   We reject the claim made by the People that the issuance of the alternative writ of mandate by this court has rendered moot the issue of whether the clerk may reject a notice of appeal since the issue is capable of recurring.

2.   All further statutory references are to the Penal Code unless otherwise indicated.

3.   Following Tenorio, the Supreme Court issued In re Cortez (1971) 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819, in which it articulated the procedures to be followed by defendants seeking review of their sentences in light of Tenorio.   At the conclusion of the list of procedures the Cortez court stated:  “If the court determines not to strike the prior conviction or convictions, then it should enter an order denying the petition for writ of habeas corpus and remanding the petitioner to prison to complete his sentence pursuant to the original sentence.   If, however, the court determines to strike one or more of the prior convictions, it should grant the petition for writ of habeas corpus, vacate the sentence and rearraign the petitioner for judgment and sentence.”   (In re Cortez,supra, 6 Cal.3d at p. 89, 98 Cal.Rptr. 307, 490 P.2d 819.)   Neither Tenorio nor Cortez discuss the issue of the appealability of an order denying a petition for writ of habeas corpus.

4.   Although section 1237, subdivision 2, has been renumbered section 1237, subdivision (b), it continues to make appealable “any order after judgment, affecting the substantial rights of the party.”

BOREN, Presiding Justice.

FUKUTO and NOTT, JJ., concur.