People v. Walker

THE PEOPLE, Plaintiff and Respondent, v. JEFFREY WALKER, Defendant and Appellant.

A164170, A164171, A164172

California Court of Appeals, First District, Fourth Division

January 25, 2023

NOT TO BE PUBLISHED

Order Filed Date: 2/21/23

City & County of San Francisco Super. Ct. No. CT2219428

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT:

It is ordered that the opinion filed herein on January 25, 2023, be modified as follows.

1. On page 2, in the second paragraph, the sentence that starts with "On May 25, 2005, Walker was arrested for felony violations of . . ." shall be modified to read:

On May 25, 2005, Walker was arrested for felony violations of rape by force, fear or threats (§ 261, subd. (a)(2)), sexual penetration by force, fear or threats (§ 289, subd (a)(1)), forced oral copulation (§ 288a, subd. (c)(2)) and pandering (§ 266i, subd. (a)(2)).

2. On page 2, in the second paragraph, in the second sentence which begins, "Later that year, a jury convicted Walker of pimping and pandering . . ." delete the word "pimping" so that the sentence reads:

Later that year, a jury convicted Walker of pandering and found him not guilty of the other three charges.

There is no change in the judgment.

The petition for rehearing, filed February 8, 2023, is denied.

GOLDMAN, J.

These consolidated appeals concern Jeffrey Walker's petitions for factual innocence and an order sealing arrest records under Penal Code section 851.8^[1] in three separate criminal cases. In appeal number A164172, Walker appeals from orders denying his motions for reconsideration of the trial court's order denying his section 851.8 petition. Those orders are not appealable because the reconsideration motions present the same factual and legal basis as Walker's section 851.8 petition in that matter. We therefore dismiss appeal A164172. Regarding cases A164170 and A164171, we transfer those matters to the appellate division of the superior court because the section 851.8 petitions at issue in those appeals involve arrests that did not result in an accusatory pleading, and, therefore, jurisdiction rests with the appellate division of the superior court. (§ 851.8 subd. (p)(2).)

BACKGROUND

The following section describes the relevant facts pertaining to appeal number A164172. We need not describe in detail the facts in appeal numbers A164170 and A164171, and we discuss any facts relevant to those appeals in our discussion of those matters below.

On May 25, 2005, Walker was arrested for felony violations of rape by force, fear or threats (§ 261, subd. (a)(2)), sexual penetration by force, fear or threats (§ 289, subd (a)(1)), lewd or lascivious act on a child under 14 years old (§ 288, subd. (a)), and pimping and pandering (§ 266i, subd. (a)(2)). Later that year, a jury convicted Walker of pimping and pandering and found him not guilty of the other three charges. The court sentenced Walker to 12 years in state prison.

I. Initial Section 851.8 Petitions

On October 21, 2015, more than 10 years after his pandering conviction, Walker petitioned under section 851.8 for a finding of factual innocence and to seal and destroy arrest records for the sex offenses for which he was found not guilty. But the court declined to rule on the petition because it was improperly filed.

Over a year later, on November 7, 2016, Walker refiled his section 851.8 petition. By that point, Walker had been committed as a sexually violent predator to a facility designated by the Department of State Hospitals under Welfare and Institutions Code section 6600 et seq. A hearing for the petition was held in February 2017. Walker's appointed counsel for an unrelated matter made a special appearance on his behalf because he was "undergoing various medical procedures . . . ." At counsel's request, the court took the matter off calendar without prejudice.

II. January 2021 Petition and March 2021 Order Denying Petition

Almost four years later, on January 11, 2021, Walker renewed his section 851.8 petition. Walker asserted that he did not know he was not factually innocent of the sex offenses until 2015, that he was thereafter diligent in pursuing relief under section 851.8, and that under People v. Bermudez (2009) 172 Cal.App.4th 966 and two superior court cases, the delay in filing his petition should be excused because of his ignorance of the law or an "order to show cause" should be issued. He further claimed that the court ordered him placed on "forced psychiatric medication" from 2017 until March 2021, and that his psychiatrist had lowered the dose a few months ago so that he was no longer sedated and could file the petition.

On March 4, 2021, the court denied Walker's petition as untimely. It noted that the two-year time limit had expired on May 25, 2007 and stated that it was denying the motion "because I do not believe the court has jurisdiction." Walker responded, "I will be appealing."

III. Motions for Reconsideration and August 2021 and October 2021 Orders Denying Motions

On March 30, 2021, Walker filed a motion for reconsideration of his section 851.8 petition. According to the petition, Walker recently received "new" evidence from the Department of State Hospitals "that was in storage since 2017 when he was on forced psychiatric medication. . . ." Specifically, he received a letter from his appointed counsel dated December 2016 stating that the judge was concerned with the "Matthews" case. He argued that People v. Bermudez, supra, 172 Cal.App.4th 966, which he cited in his January 2021 petition, supersedes People v. Matthews (1992) 7 Cal.App.4th 1052 on the issue of whether ignorance of the law justifies the delay in filing a section 851.8 petition. Walker also suggested that the court did not review his filings. The rest of his motion reiterated many of the same arguments and claims he made in his prior petitions regarding good cause for the delay in filing the petition.

On May 24, 2021, the court heard argument on his motion for reconsideration. At the hearing, the court found that Walker was "fully aware" of the relief available under section 851.8 in 2015. And the court questioned whether "just being on medication" was sufficient to excuse Walker's delay in filing the petition in the following six years. The court ordered Walker to submit any supplemental medical proof showing that he was "comatose and unable to file these motions. . . ."

At a hearing on August 19, 2021, the court found that although "[t]here was additional detail in terms of the facts of the medications" Walker received when he was involuntarily medicated, "[t]he new circumstances or the arguments that have been made in the motion for reconsideration were the same arguments that were made before Judge Caffese [who ruled on the January 2021 petition]." The court also noted that Walker learned of the relief in section 851.8 in June 2015 but did not file it until November 2016: "So that's over a year since you admittedly knew of the availability of the procedures that you could have, and did not file a petition at that time." The court further noted that Walker waited six months after his medication was reduced in June 2020 and he became competent to renew his petition. The court therefore denied Walker's motion for reconsideration.

On October 4, 2021, Walker filed a motion for "review for reconsideration," again arguing that he was incapacitated for several years and that the court, in denying his petition on March 4, 2021, did not review his filings. He further argued that there was no statute of limitations if the petition was brought under subdivision (c) of section 851.8. The court denied the motion on the ground that Walker already had the opportunity to fully litigate his petition.

Walker appealed from the orders denying reconsideration.

DISCUSSION

I. Appealability in Appeal Number A164172

The Attorney General contends that appeal number A164172 should be dismissed because it is an appeal from orders denying Walker's motions for reconsideration of the order denying his section 851.8 petition that were based on the same factual and legal basis as his section 851.8 petition. We agree.

" 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.'" (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Walker's statement of appealability in his opening brief states that this appeal is taken from orders that are appealable under section 851.8, subdivision (p)(1), which provides that "[a] judgment of the court under subdivision (b), (c), (d), or (e) is subject to" an appeal, in felony cases, to the court of appeal. (§ 851.8, subd. (p)(1).) The March 4, 2021 order denying Walker's section 851.8 petition constitutes a judgment for purposes of subdivision (p) of section 851.8 because it denied him relief under subdivision (c) of that section.

However, Walker is appealing from the August 19, 2021 and October 4, 2021 denials of his motions for reconsideration of the March 4, 2021 order,^[2]and not the March 4, 2021 order. Even if we were to liberally construe the notice of appeal as encompassing the March 4, 2021 order, his appeal from that order would be untimely since it needed to be filed by May 3, 2021.^[3](§ 1239, subd. (a); Cal. Rules of Court, rule 8.308, subd. (a).) The question then is whether the orders denying Walker's reconsideration motions are appealable.

Section 851.8 does not authorize appeals from orders denying a motion to reconsider a judgment of the court under that section. But under section 1237, a defendant may take a criminal appeal from "any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd (b).) An order determining the...