People v. Gray

1

THE PEOPLE, Plaintiff and Appellant, v. SHAWN VINCENT GRAY, Defendant and Respondent.

F085699

California Court of Appeals, Fifth District

April 4, 2024

APPEAL from orders recalling and modifying a judgment of the Superior Court of Kern County No. BF160326A. Gloria J Cannon, Judge.

Cynthia J. Zimmer, District Attorney, and Anthony J. Yim Deputy District Attorney, for Plaintiff and Appellant.

Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

SNAUFFER, J.

In January 2016, respondent Shawn Vincent Gray reached a plea agreement with the prosecution and entered no contest pleas to one count of stalking (Pen. Code,^[1] § 646.9, subd. (b)) and two counts of making criminal threats (§ 422). He also admitted a prior strike allegation (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)) and six one-year prior prison commitment allegations (former § 667.5, subd. (b)(1) [hereafter 667.5(b)] .)

The parties further agreed that the trial court would resolve Gray's concomitantly entered pleas of not guilty by reason of insanity (NGI) without a jury trial and instead by reviewing the reports of various "alienists." It did and found Gray NGI.

During his plea colloquy, Gray acknowledged that an NGI verdict would mean that he would be committed to the Department of Mental Health^[2] for a maximum term of 19 years four months, and that this commitment could also "be extended if they find you're not restored to sanity at a later point in time." Gray's counsel concurred in full, including to the maximum commitment term. The trial court's minutes confirm that Gray's no contest pleas were "entered on condition" of a "maximum term of 19 years, 4 months." (Capitalization omitted.) At the February 2016 disposition hearing, the court formally imposed this judgment. Gray did not appeal, nor did he ever seek collateral writ relief, and the judgment thereafter became final.

In 2019, effective January 1, 2020, Senate Bill No. 136 (SB 136) amended section 667.5, and limited one-year prior prison term sentencing enhancements to sexually violent offenses. (See current § 667.5(b); Stats. 2019, ch. 590, § 1 (2019-2020 Reg. Sess.); People v. Jennings (2019) 42 Cal.App.5th 664, 681 (Jennings).) All other one-year sentencing enhancements arising from prior prison commitments under the previous version of that section were declared legally invalid. (Jennings, supra, 42 Cal.App.5th at p. 682.)

Two years after that, the Legislature passed Senate Bill No. 483 (SB 483), which made SB 136's changes to section 667.5 partially retroactive so as to include previously final criminal judgments. (Stats. 2021, ch. 728, § 1 ["[I]t is the intent of the Legislature to retroactively apply … [SB 136] to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements."

(Italics added.)].) SB 483 took effect on January 1, 2022, and its provisions were codified as section 1171.1. (Stats. 2021, ch. 728, § 3.) Section 1171.1 was subsequently renumbered in 2022 without substantive change as section 1172.75. (Stats 2022, ch. 58, § 12, eff. June 30, 2022.)

Notably, none of the changes to the one-year prison prior criminal sentencing enhancements of section 667.5(b) was made applicable to a previously calculated maximum term of commitment in NGI judgments like Gray's.

In January 2023, presumably on Gray's behalf,^[3] the Kern County Public Defender filed a "Petition to Recall Maximum Commitment Time and Strike Legally Invalid Enhancement" (some capitalization omitted) in the Kern County Superior Court, in which his deputy specifically cited section 1172.75 and SB 483 in the petition's caption.^[4]

Other than this passing reference to SB 483 and section 1172.75 in its caption, the "petition" (or "motion") did not further identify a source for the superior court's underlying authority to recall and modify the terms of Gray's then-final 2016 NGI judgment. Although the "petition [was] based on the Court's records in this case … [and] also based on any other evidence, including testimony that may be presented at the hearing on this matter," no "evidence" or "testimony" was adduced at the hearing.^[5] In a brief three-page response, the People opposed the petition without disputing the applicability of section 1172.75 or SB 483, and instead argued that the petition should be denied because reducing Gray's original maximum commitment term would endanger public safety within the meaning of section 1172.75, subdivision (d)(1). Likewise, the People did not contest the superior court's jurisdiction to entertain Gray's petition in the first instance.

In granting the petition, the court stated:^[6]

"When the Court reads [section] 1026.5(a)(1) and it discusses the maximum sentence is the upper term plus the enhancements, we now have the invalid prison priors and I don't believe the Court can impose them at this point given they're legally invalid. [¶] I understand [the People's] argument … regarding the discretion of the Court if there is a threat by the defendant. I believe that is addressed by [section] 1026.5(b), which allows the People to file a petition to extend the time. As indicated in [the deputy public defender's] paperwork or her response, even if the Court grants the [petition], the defendant is not scheduled for release now. And while the argument submitted by the People does indicate he's currently still a threat, in 2029 when he would be scheduled for release, it's unknown if he would be a threat at that time. The People have the ability to file to extend his commitment. [¶] For those reasons I'm going to grant the [petition] as prayed. I will recall the sentence and reset the sentence to a maximum of 13 years, four months." (Italics added.)

Thus, in granting Gray's freestanding petition (or "motion"), the court recalled Gray's final 2016 NGI judgment, modified one of its underlying terms by disregarding the six previously calculated section 667.5(b) priors, and recommitted Gray to "any appropriate state hospital pursuant to Penal Code [section] 1026," for a new "maximum term of commitment [of] 13 years 4 months." (Some capitalization omitted.)

To reiterate, neither party - nor the court - ever discussed the court's jurisdiction to consider the petition in the first instance, or the court's authority to modify the 2016 final judgment by substantially altering one of its terms, and recommitting Gray under a different maximum term.

The People appealed, claiming the court erred by recalculating Gray's maximum term of commitment on two grounds: (1) the legislative changes that eliminated most section 667.5(b) sentencing enhancements did not retroactively apply to Gray's 2016 maximum term of commitment; and (2) because Gray continued to be a threat to public safety, any reduced commitment recalculation was erroneous.

DISCUSSION

There are two distinct, and largely unaddressed, justiciability issues that must be resolved at the outset before we can move on to consider the merits.

First the People noticed their appeal as being taken from Judge Cannon's "decision to reduce Defendant's sentence," even though Gray was never sentenced. Furthermore, Gray did not challenge the People's appealability allegation.

Second, in their initial appellate briefing, the People did not question whether or how Judge Cannon had the authority to even consider Gray's petition. As a result, both parties' original briefing only addressed the substantive merits of their underlying positions. We therefore ordered supplemental briefing.

As discussed below, we conclude that the People's appeal here was statutorily authorized - although not on the ground the People originally alleged - and we therefore have appellate jurisdiction. However, we also find that the superior court lacked jurisdiction to entertain and consider Gray's petition in the first instance and its subsequent orders were void.

Because our resolution of this second issue is dispositive, we may not and do not resolve the parties' contentions on the underlying merits.

I. Our Jurisdiction: Appealability

As mentioned above, the People noticed their appeal as being one taken from Judge Cannon's "decision to reduce Defendant's sentence." (Italics added.) Correspondingly, in their opening brief the People sought appellate "relief pursuant to [section] 1238 [subdivision] (a)(6) as the trial court reduced the punishment imposed by reducing the maximum confinement time." (Italics added.) However, Gray was found not guilty by reason of insanity, i.e., he was acquitted. Thus, he was never "sentenced," "punished," or "confined," because those terms all refer to judgments imposed following a conviction, but not to NGI state hospital civil commitments.

In their opening brief, the People stated that the question of appealability was "an issue of first impression for the courts," but never went on to propose how we should resolve this question, and instead simply moved on to the merits of their claims. In his response brief, Gray also skirted whether the People's appeal was cognizable, other than to concede that it was "timely filed."

As a result, we first ordered the parties to address three appealability questions: (1) does section 1238, subdivision (a)(6) apply here;^[7] (2) if it does not, were Judge Cannon's orders otherwise appealable by the People; and (3) if not, must the People's appeal be dismissed? In other words, before anything else, we must first determine whether Judge Cannon's 2023 actions recalling Judge Somers's 2016 final NGI judgment, and modifying it by recalculating Gray's maximum term of commitment, are properly subject to a People's direct appeal.

It is rudimentary that an appellate court has...