People v. Hillard CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD178097
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Joan K. Irion
Analysis
The trial court denied Hillard's petition to recall his third-strike sentence, finding the petition was untimely and that his prior conviction for attempted murder rendered him ineligible for relief under Proposition 36. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues for reversal after an independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to recall third-strike sentence based on untimeliness“The record demonstrates as the trial court found, Hillard did not sign his petition and the accompanying documents until January 15, 2015. Thus, regardless of problems with the prison's mail system, there can be no reasonably arguable issue that Hillard's petition was timely.” | de novo | correct | agree with court agree with court |
Denial of petition to recall third-strike sentence based on ineligibility due to prior attempted murder conviction“Hillard's brief makes no attempt to dispute the fact of his prior conviction for attempted murder. Nor does the brief attempt to show that such prior conviction does not disqualify him for relief under the proposition.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record to identify any reasonably arguable issues for reversal.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and to request leave to withdraw if none are found.
- relied: People v. Vargas (2014) 59 Cal.4th 635 — Cited by appellant as a basis for resentencing, but the court found it irrelevant to the specific statutory motion to recall.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders framework to review the denial of a statutory recall petition. It properly limits the scope of review to the specific grounds for denial (untimeliness and ineligibility) rather than the underlying 2004 convictions, and correctly notes that the appellant failed to challenge the factual basis for his ineligibility.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court denied Maurice Hillard's Proposition 36 petition to recall his 2004 three strikes sentence of 302 years to life, finding the petition untimely (signed January 15, 2015, beyond the two-year window from November 2012) and finding Hillard ineligible because of a prior attempted murder conviction under Penal Code section 667, subdivision (e)(2)(C)(iv)(IV). On a Wende appeal, the Court of Appeal reviewed the record, rejected the Anders issues and Hillard's supplemental brief as not reasonably arguable, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Proposition 36 recall petition as untimely filed beyond the two-year period following enactment in November 2012“Thus, regardless of problems with the prison's mail system, there can be no reasonably arguable issue that Hillard's petition was timely.” | unclear | correct | agree with court The record showed Hillard did not sign the petition until January 15, 2015, more than two years after Proposition 36 took effect, so a prison-mail delay could not have made it timely. The opinion does not discuss the statutory good-cause exception for late filing, but any gap is immaterial because the independent ineligibility ground disposes of the petition. |
Finding that Hillard was ineligible for resentencing because of his prior attempted murder conviction (Pen. Code, § 667, subd. (e)(2)(C)(iv)(IV))“Hillard's brief makes no attempt to dispute the fact of his prior conviction for attempted murder.” | unclear | correct | agree with court Section 667, subdivision (e)(2)(C)(iv)(IV) expressly lists attempted homicide offenses as disqualifying priors, and Hillard did not dispute the conviction or argue it fell outside the statute. The ineligibility finding independently supports the denial regardless of timeliness. |
Rejection of Anders issues and supplemental brief challenging the underlying 2004 sentence (section 654-stayed strike priors, Eighth Amendment, People v. Vargas) as not cognizable on appeal from a Proposition 36 denial“Given that this case is before us in an appeal from a statutory motion to recall a third strike sentence, the two possible issues presented by appellate counsel do not raise any reasonably arguable issues for reversal of the denial of the petition.” | unclear | correct | agree with court The 2004 judgment was final and the only mechanism for recall is the statutory Proposition 36 scheme, which turns on eligibility, not on the validity of the original strike findings or constitutional challenges to the original sentence. Vargas addresses whether two convictions from a single act can count as two strikes, which does not bear on eligibility under section 1170.126, and this court had previously found the priors arose from separate acts. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for reasonably arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may file a brief identifying anything in the record that might arguably support the appeal to assist the court's review.
- relied: People v. Vargas (2014) 59 Cal.4th 635 — Two prior convictions arising from a single act against a single victim cannot be treated as two separate strikes; the court found Hillard failed to show its relevance to an eligibility-based denial of a Proposition 36 petition.
The appellate opinion: sound with gaps — The court correctly confined its Wende review to the order actually appealed, explained why challenges to the long-final 2004 sentence are not cognizable in a Proposition 36 recall appeal, and relied on the undisputed disqualifying attempted murder prior. It did not address the good-cause exception for late petitions under section 1170.126, subdivision (b), but that omission does not affect the result because ineligibility is an independent and sufficient ground.
Opinion
Filed 7/16/15 P. v. Hillard CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067755
Plaintiff and Respondent, v. (Super. Ct. No. SCD178097)
MAURICE HILLARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Maurice Hillard appeals from the trial court's order denying Hillard's petition to recall his three strikes sentence imposed in 2004. The trial court denied the petition, finding it was untimely filed and that Hillard's prior conviction for attempted murder rendered him ineligible for resentencing under Proposition 36 (Pen. Code,1 § 667, subd. (e)(2)(C)(iv)(IV)). Hillard requests and we will grant judicial notice of this court's opinion in People v. Hillard (D045175), filed April 19, 2006. We will refer to various portions of our prior opinion in order to address the procedural history of Hillard's current sentence.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating she has been unable to identify any reasonably arguable issues for reversal on appeal. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel has set out two possible, but not reasonably arguable issues to assist this court in its responsibility to review the record for error (Wende, supra). Hillard has filed a supplemental brief on his own behalf. We will discuss the Anders issues and the supplemental brief below.
In order to establish the context of the review that follows, we emphasize that this appeal is from an order denying recall of a third strike sentence. The 2004 convictions and sentence were final long before the enactment of Proposition 36. We must keep in mind that the mechanism permitting recall of a final judgment in this case is solely the statutory scheme created in the reform of the three strikes law. Thus, in searching for reasonably arguable issues for reversal, we are not permitted to roam at large through the history of the 2004 convictions. Rather, our task is to determine whether there are any reasonably arguable issues that could give rise to reversal of the specific order in this 1 All further statutory references are to the Penal Code unless otherwise specified. 2 case, which determined that Hillard was not eligible for the recall procedure because of his prior attempted murder conviction and because his petition was not timely filed.
PROCEDURAL BACKGROUND
In the 2004 case, Hillard was convicted of conspiracy (§ 182, subd. (a)(1)); six counts of unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)); four counts of burglary (§ 459); two counts of grand theft (§ 487, subd. (a); one count of attempted grand theft (§§ 487, subd. (a), 664); one count of receiving stolen property (§ 496, subd. (a)); and one count of resisting arrest (§ 148, subd. (a)).
Two prison priors (§ 667.5. subd. (b)) and two strike priors (§ 667, subds. (b)-(i))
were found true. The trial court denied the motion to dismiss the strike priors and sentenced Hillard to a total indeterminate term of 302 years to life.
On appeal this court affirmed the convictions and sentence. As relevant to this appeal the court addressed the contention that at least one of the strike priors should have been dismissed, because they allegedly arose from the same act and the original sentencing on the prior convictions (attempted robbery and attempted murder) the court stayed the attempted robbery sentence under section 654. This court found no error in denying the motion to dismiss because the attempted robbery and attempted murder were separate acts during a continuing course of conduct.
Hillard's petition for review was denied.
On January 15, 2015, Hillard signed and mailed his petition for recall of his third strike sentence. The trial court noted the petition was not signed until January 2015, well beyond the time limit in Proposition 36. The court also found Hillard was not eligible for 3 relief under the proposition because he had suffered a prior conviction for attempted murder.
Hillard filed timely notices of appeal.
STATEMENT OF FACTS
From 2001 through 2003, Hillard and Charles Calhoun stole various trucks. They used the trucks to commit burglaries and grand theft of ATM machines. Once away from the scene they would open the ATMs and take the cash. They would then abandon the truck and steal another one for the next crime.
On October 9, 2003, a sheriff's deputy observed a stolen truck being driven by Calhoun and in which Hillard was a passenger. A high speed chase followed after which Calhoun and Hillard were arrested.
DISCUSSION
As required by Wende, supra, 25 Cal.3d 436, we have reviewed the entire record to determine if there are any reasonably arguable issues for reversal on appeal. Our review has not revealed any reasonably arguable issues.
Pursuant to Anders, supra, 386 U.S. 738, counsel has presented two possible, but not reasonably arguable issues for our review:
1. Was appellant's three strikes term contrary to the three strikes law, in that his strikes were two counts, attempted robbery and attempted murder, for which punishment was stayed pursuant to section 654?
2. Has the Eighth Amendment analysis of the three strikes law fundamentally changed since Hillard's appeal was decided in 2006?
4 Given that this case is before us in an appeal from a statutory motion to recall a third strike sentence, the two possible issues presented by appellate counsel do not raise any reasonably arguable issues for reversal of the denial of the petition.
We next turn to Hillard's supplemental brief. To the extent we understand it, the brief raises two issues that have some possible relevance to the issues in this case.
First, Hillard contends he is entitled to resentencing because the court decision in People v. Vargas (2014) 59 Cal.4th 635 was decided after this court's opinion affirming his sentence in 2006. Thus, he reasons he is entitled to remand for the trial court to consider the Vargas case. His brief does not disclose how the Vargas decision is relevant to this appeal from an order denying his petition on ineligibility grounds.
His second, potentially relevant, issue is his claim his petition was timely filed because the prison did not mail it in time. This record, however, does not permit such argument. Petitions for recall under Proposition 36 must be filed within two years of the enactment of the proposition (November 2012). The record demonstrates as the trial court found, Hillard did not sign his petition and the accompanying documents until January 15, 2015. Thus, regardless of problems with the prison's mail system, there can be no reasonably arguable issue that Hillard's petition was timely.
Hillard's brief makes no attempt to dispute the fact of his prior conviction for attempted murder. Nor does the brief attempt to show that such prior conviction does not disqualify him for relief under the proposition.
As we have indicated we have reviewed the entire record and the briefs of both counsel and Hillard. We have not indentified any reasonably arguable issue for reversal 5 of the order which is the subject of this appeal. Competent counsel has represented Hillard on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
Cites, in this corpus
- People v. Vargas S203744 · 2014-07-10
- People v. Wende Crim. 20851 · 1979-10-12