People v. Koulavongsa CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE335576
- Trial judge
- John M. Thompson
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell
Analysis
The trial court sentenced the defendant to seven years and four months in prison for five counts, including forgery, following a guilty plea. The Court of Appeal affirmed the judgment, holding that the defendant's request to reduce the forgery conviction to a misdemeanor under Proposition 47 must be addressed by a petition in the trial court, not on direct appeal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of the request to reduce the forgery conviction (Count 5) to a misdemeanor on direct appeal“Since we cannot provide the remedy appellant seeks, and he has an effective remedy in the trial court, we will affirm the judgment and permit appellant to seek appropriate relief there.” | unclear | error | agree with court The appellate court correctly identified that Penal Code section 1170.18 provides a specific statutory mechanism (a petition to the superior court) for reducing prior convictions to misdemeanors under Proposition 47. Because the defendant's notice of appeal was filed before the proposition took effect, and the only issue raised was this statutory reduction, the appellate court lacked the procedural mechanism to grant the relief directly without a remand. The court declined to use a limited remand (as in People v. Awad) because the sentence on the affected count was concurrent with unchallenged counts, meaning no immediate benefit would be lost by waiting for the trial court process. This aligns with the statutory scheme and avoids unnecessary appellate intervention where a specific trial court remedy exists. |
Authorities
- relied: People v. Awad (2015) 238 Cal.App.4th 215 — Established that for defendants sentenced before Proposition 47, the remedy for reducing a conviction to a misdemeanor is a petition to the superior court, and discussed the option of a limited remand under section 1260 in cases where delay would prejudice the defendant.
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Supported the proposition that section 1170.18 provides the mechanism for petitioning the superior court to reduce a conviction to a misdemeanor for those sentenced before the enactment of Proposition 47.
- relied: In re Anna S. (2010) 180 Cal.App.4th 1489 — Established that once a notice of appeal is filed, jurisdiction is vested in the appellate court, and the trial court lacks jurisdiction to deal with the case.
- relied: People v. Perez (1979) 23 Cal.3d 545 — Supported the principle that filing a notice of appeal vests jurisdiction in the appellate court, limiting the trial court's ability to act on the case.
The appellate opinion: sound — The opinion is sound because it correctly applies the statutory remedy provided in Penal Code section 1170.18, which mandates a petition to the superior court rather than direct appellate relief. It also logically distinguishes the present case from People v. Awad by noting that the concurrent nature of the sentence on the challenged count means the defendant suffers no prejudice from the delay inherent in the trial court petition process.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Koulavongsa's guilty plea to five counts, including felony forgery (count 5), with admitted strike and prison priors, and sentenced him to seven years four months, imposing a concurrent midterm on count 5. On appeal he asked for the first time that count 5 be reduced to a misdemeanor under Proposition 47; the Court of Appeal declined to grant that relief or to order a limited remand, affirmed the judgment, and left him to petition the superior court under section 1170.18.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment and felony sentence on count 5 (forgery), which appellant asked the appellate court to reduce to a misdemeanor under Proposition 47 (Pen. Code, § 1170.18)“Since we cannot provide the remedy appellant seeks, and he has an effective remedy in the trial court, we will affirm the judgment and permit appellant to seek appropriate relief there.” | de novo | not reached | agree with court The court treated the issue as a pure question of law and did not decide whether the forgery conviction qualifies for reduction; it held the statutory remedy for a defendant convicted and sentenced before Proposition 47's effective date is a recall petition in the superior court under section 1170.18, consistent with Awad and Rivera. It reasonably distinguished Awad's limited-remand procedure because no other count or sentence was challenged and the count 5 term is concurrent, so delay causes no prejudice. The court did not address any argument that Proposition 47 applies directly to nonfinal judgments under In re Estrada, but published authority on the parallel Proposition 36 petition scheme (Yearwood) supports the court's approach. |
Authorities
- relied: People v. Awad (2015) 238 Cal.App.4th 215 — A defendant sentenced before Proposition 47 took effect must seek reduction by petition in the superior court under section 1170.18; where an appeal is pending, a limited remand under section 1260 with the appeal stayed is one available procedure.
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Section 1170.18 provides the mechanism for persons already serving sentences to petition the superior court for recall and resentencing under Proposition 47.
- relied: In re Anna S. (2010) 180 Cal.App.4th 1489 — Once a notice of appeal is filed, jurisdiction vests in the appellate court and the trial court generally lacks jurisdiction over the matter.
- relied: People v. Perez (1979) 23 Cal.3d 545 — The filing of a notice of appeal divests the trial court of jurisdiction over the judgment appealed from.
- missed: People v. Yearwood (2013) 213 Cal.App.4th 161 — A defendant sentenced before a sentencing-reform initiative took effect, whose judgment was not yet final on appeal, is relegated to the initiative's petition procedure in the trial court rather than direct application of the new law on appeal; Estrada retroactivity is displaced by the express petition mechanism.
The appellate opinion: sound with gaps — The court correctly identified section 1170.18 as the exclusive statutory route for a defendant already sentenced when Proposition 47 took effect, relied on Awad and Rivera, and gave a sensible reason for declining a limited remand since only an unchallenged concurrent count was at issue. It did not, however, confront any Estrada-based argument that the new law applies directly to nonfinal judgments, nor cite Yearwood, the published authority most directly supporting its conclusion.
Opinion
Filed 9/29/15 P. v. Koulavongsa 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, D066804
Plaintiff and Respondent, v. (Super. Ct. No. SCE335576)
SENGNGEUN KOULAVONGSA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, John M.
Thompson, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Sengngeun Koulavongsa entered a guilty plea to one count of evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 1), unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a); count 2), receiving a stolen vehicle (Pen. Code,1 § 496d; count 3), receiving stolen property (§ 496, subd. (a); count 4), and forgery (§ 475, subd. (b); count 5). He also admitted two strike priors (§ 667, subds. (b)- (i)) and four prison priors (§ 667.5, subd. (b)).
The court sentenced appellant to a total term of seven years four months in prison.
Appellant asks this court, for the first time on appeal, to reduce his forgery conviction (count 5) to a misdemeanor pursuant to Proposition 47 (§ 1170.18). We find the remedy for appellant is to bring a motion to recall his sentence in the trial court pursuant to section 1170.18. Appellant does not challenge his guilty pleas or the court's sentencing decision. Rather his only claim is we should reduce his sentence on one count. Appellant's remedy is provided by statute and that is a petition to recall his sentence on the forgery count. That petition must be filed in the superior court.2
DISCUSSION
Appellant asks this court to reduce his forgery conviction to a misdemeanor under Proposition 47. Appellant was convicted and sentenced before the passage of the proposition. His notice of appeal was filed October 9, 2014, prior to the effective date of Proposition 47.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 The issue presented on appeal is a question of law, unaffected by the facts underlying the guilty plea. Thus we will omit the traditional statement of facts. 2 Ordinarily, once a notice of appeal is filed, jurisdiction over the matter is vested in the appellate court and the trial court thus lacks jurisdiction to deal with the case. (In re Anna S. (2010) 180 Cal.App.4th 1489, 1499; People v. Perez (1979) 23 Cal.3d 545, 554.)
Appellant seeks the assistance of this court to address his claim that his forgery conviction should be reduced to a misdemeanor.
Section 1170.18 provides a mechanism for those who were convicted and sentenced before the enactment of the proposition on November 4, 2014. That remedy is to petition the superior court to reduce the conviction to a misdemeanor if qualified for such treatment under the act. (People v. Awad (2015) 238 Cal.App.4th 215, 220 (Awad);
People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)
Division Three of this court faced a problem in Awad similar to that presented here. There the defendant was sentenced and appealed before Proposition 47 (§ 1170.18)
became effective. Awad appealed challenging various counts and also claimed one of the counts should be reduced to a misdemeanor. The court referred to the defendant's position as a "Hobson's choice." He could either pursue his appeal and after the remittitur is returned, then address the Proposition 47 issue, or abandon his appeal. (Awad, supra, 238 Cal.App.4th at p. 218.) In such instance, the court reasoned that the passage of time during appeal would have diminished the benefit of the reduction to the defendant.
(Awad, at p. 221.) In that case the court determined to issue a limited remand under section 1260 to allow the superior court to address the misdemeanor issue, while the appeal is stayed pending the resentencing. (Awad, at p. 225.)
3 The People suggest that a limited remand is one possibility we should consider.
We decline to follow that procedure because of the procedural posture of this appeal.
Appellant pleaded guilty to five offenses. He has not appealed from any of the convictions or sentences except for the sentence imposed for count 5, forgery. As to that count, appellant only contends the sentence should now be reduced to a misdemeanor.
The sentence imposed for count 5 was a concurrent midterm sentence.
In this case, there is nothing for us to address regarding counts 1 through 4, nor is there any challenge to count 5 save for the newly raised claim it should be a misdemeanor.
As the court made clear in Awad, the statutory remedy for a claim that a sentence should be recalled and reduced to a misdemeanor is a petition filed in the superior court.
(Awad, supra, 238 Cal.App.4th at p. 220; § 1170.18.)
Since we cannot provide the remedy appellant seeks, and he has an effective remedy in the trial court, we will affirm the judgment and permit appellant to seek appropriate relief there.
Appellant will not be prejudiced by any delay in the remittitur process because he is serving a significant prison term on other, unchallenged counts and the sentence for count 5 is concurrent to those terms.
4 DISPOSITION
The judgment is affirmed without prejudice to any remedies appellant may have under section 1170.18.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 5
Cites, in this corpus
- People v. Awad G050579, G051078 · 2015-06-29
- People v. Rivera H041742 · 2015-01-29
- In Re Anna S. D055036 · 2010-01-13
- People v. Perez Crim. 20370 · 1979-03-05