In re Duval

• Decision Date: 21 January 2020
• Docket Number: G056247
• Parties: IN RE Jeffrey Donal DUVAL on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

44 Cal.App.5th 401

257 Cal.Rptr.3d 557

IN RE Jeffrey Donal DUVAL on Habeas Corpus.

G056247

Court of Appeal, Fourth District, Division 3, California.

Filed January 21, 2020

Tony Rackauckas and Todd Spitzer, District Attorneys, and George Turner, Deputy District Attorney, for Plaintiff and Appellant.

Correen Ferrentino, Costa Mesa, under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

THOMPSON, J.

The People appeal from the lower court’s order vacating defendant Jeffrey Donald Duval’s five-year jail sentence and resentencing him to a four-year term following a hearing on defendant’s petition for a writ of habeas corpus.

We conclude the court had no need to hold an evidentiary hearing when the People failed to file a return to defendant’s writ petition after being ordered to show cause why habeas corpus relief should not be granted. In addition, we find the court did not exceed its authority by vacating defendant’s previously imposed sentence and resentencing him in the manner it did. As such, the court did not err and we therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant pleaded guilty to the possession for sale and transportation of methamphetamine ( Health & Saf. Code, §§ 11378, 11379, subd. (a) ), receiving stolen property ( Pen. Code, § 496, subd. (a) ), and unlawful possession of a stun gun ( Pen. Code, § 22610, subd. (a) ). He admitted two prior drug-related convictions ( Health & Saf. Code, § 11370.2, subd. (c) ), and two prior prison commitments ( Pen. Code, § 667.5, subd. (b) ). In exchange for his guilty plea, defendant was to receive a two-year county jail sentence, even though his maximum exposure was an 11-year, 4-month prison term. Defendant entered a Cruz¹ waiver, agreeing that if he failed to appear at his sentencing hearing the trial court would not be bound by the negotiated two-year term and could sentence him up to the maximum term in his absence.

Defendant failed to appear for his sentencing. In absentia, the court imposed a prison sentence of nine years, eight months. Defendant’s trial counsel did not object to the sentence, did not ask for a hearing on whether defendant’s violation of the Cruz waiver was willful, and did not present any evidence for why defendant failed to appear. The following court day defendant appeared and was taken into custody. The next day, at the request of defense counsel, the court recalled and vacated defendant’s prison sentence, and instead imposed a five-year county jail term.

Defendant unsuccessfully attempted to modify this sentence, seeking to restore his original two-year plea agreement by claiming, among other things, he had not been fully informed of the consequences of his plea. He also filed a habeas corpus petition in the superior court, which was denied.

Defendant then filed a habeas corpus petition in this court in case No. G055338.² In it, defendant contended he received ineffective assistance of counsel because his attorney failed to argue or present evidence he did not willfully violate his Cruz agreement. We summarily denied that petition.

Defendant filed a petition for review in the Supreme Court. (In re Duval , review granted Jan. 10, 2018, S245344.) In his answer to the petition, the Attorney General conceded that, if the allegations of the petition were true, they established a prima facie showing of ineffective assistance of counsel.

The Supreme Court granted the petition for review and directed us "to vacate [our] order denying the petition for writ of habeas corpus, and to issue an order directing [the People] to show cause before the Orange County Superior Court why petitioner is not entitled to the relief requested."

We vacated our summary denial and "ordered that this matter be remanded and returned to the Orange County Superior Court ... for the purpose of holding an evidentiary hearing to determine whether a writ of habeas corpus should be issued in this matter. [¶] The Superior Court shall set the matter for an evidentiary hearing to be held within 90 days from the date of this order and to conclude the hearing within 15 days thereafter. At the conclusion of the hearing, the Superior Court shall prepare and transmit to this court ... a minute order, which includes any factual findings made by the court, and the court’s ruling."

Back in the superior court, a hearing was held on the 83rd day after our order. In the interim, the People did not file a return—or any other response—to our order to show cause.

No evidentiary hearing was held on that day. Instead, after an unreported chambers discussion with the parties, the lower court stated its "tentative" ruling was to grant defendant’s prayer for relief without "formally granting" the petition, and without "making any factual findings in this case with respect to the merits of the claims in the writ [petition]."

The People objected, arguing there was no "legal basis for the ruling" and asserting it was "an illegal sentence." They contended we had ordered the court to hold an evidentiary hearing, and the court was obligated to do nothing other than comply with that order. They did not ask leave to file a return or otherwise continue the proceeding.

The court stated it had "reviewed all of the documents, all of the pleadings, and all of the exhibits attached to the petition...." Ultimately, and over the People’s continuing objections, the court granted relief by way of vacating defendant’s five-year jail sentence, and resentencing him to a four-year jail term. In its written order, the court stated it was granting "the relief requested" by defendant "in the interest of justice and because [defendant] has suffered irreparable harm after serving nearly 4 years ... when the negotiated plea ... was 2 years."³ The order did not address or make any findings on the factual or legal allegations of the petition.

The People filed a timely notice of appeal from the court’s order, basing it on Penal Code sections 1238, subdivision (a), and 1506. They did not request a stay of execution of the resentencing order from either this court or the lower court. (See Pen. Code, § 1506, impliedly repealed as to capital cases in Briggs v. Brown (2017) 3 Cal.5th 808, 840, 221 Cal.Rptr.3d 465, 400 P.3d 29.)

DISCUSSION

1. The People’s Failure to File a Return Obviated Any Need for an Evidentiary Hearing

When our Supreme Court orders us "to issue an order to show cause why the relief sought in the petition should not be granted [it] does not ... establish a prima facie determination that petitioner is entitled to the relief requested. Rather, it signifies [its] ‘preliminary determination that the petitioner has made a prima facie statement of specific facts which, if established, entitle [petitioner] to habeas corpus relief under existing law.’ [Citations.]" ( In re Serrano (1995) 10 Cal.4th 447, 454-455, 41 Cal.Rptr.2d 695, 895 P.2d 936 ( Serrano ).) "As a practical matter, the issuance of the order to show cause creates a ‘cause’ giving the People a right to reply to the petition by a return and to otherwise participate in the court’s decisionmaking process. [Citation.] It is the interplay between the return and the petitioner’s response to the return in a pleading called the traverse, that frames the issues the court must decide in order to resolve the case. [Citations.]" ( Id. at p. 455, 41 Cal.Rptr.2d 695, 895 P.2d 936.)

Although the People did not file a return, the deputy district attorney nonetheless "object[ed] to consideration of any of the declarations or evidence or statements presented in or attached to the petition on hearsay grounds," stating "[t]here is no evidence in this case." We disagree. And it is here that the People’s failure to file a return effectively dooms their appeal.

The People contend "a return was moot" in this case since we had ordered an evidentiary hearing. Similarly, they insist "a return was not necessary" because we "had already ordered the parties to conduct an evidentiary hearing." This misconstrues fundamental habeas corpus practice and the purpose of a return.

"[T]he petition states the grounds for the claimed illegality of the restraints on the petitioner’s liberty, [and] the return must be responsive to these grounds. [Citation.] [¶] The return, which must allege facts establishing the legality of the petitioner’s custody, ‘becomes the principal pleading’ [citation] and is ‘analogous to the complaint in a civil proceeding’ [citations]. Thus, the return ‘is an essential part of the scheme’ by which relief is granted in a habeas corpus proceeding. [Citation.]" ( People v. Romero (1994) 8 Cal.4th 728, 738-739, 35 Cal.Rptr.2d 270, 883 P.2d 388, fn. omitted ( Romero ); cf. In re Sixto (1989) 48 Cal.3d 1247, 1252, 259 Cal.Rptr. 491, 774 P.2d 164 ( Sixto ) [the traverse is analogous to the answer in civil actions and "[i]t is in this manner that the factual and legal issues are joined for review"].) As a result, an order to show cause "serves only the limited function of requiring the filing of a return." ( Romero , at p. 743, 35 Cal.Rptr.2d 270, 883 P.2d 388, italics added; see Pen. Code, §§ 1477, 1480.)

Thus, "[i]ssuance of an OSC [order to show cause] signifies the court’s preliminary determination that the petitioner has pleaded sufficient facts that, if true, would entitle him to relief. The Penal Code then contemplates the custodian of the confined person shall file a responsive pleading, called a return, justifying the confinement. ( § 1480.)" ( People v. Duvall (1995) 9 Cal.4th 464, 475, 37 Cal.Rptr.2d 259, 886 P.2d 1252 ( Duvall ).)⁴

Moreover, the Supreme Court has "required more of the return than mere compliance with the literal language of [Penal Code] section 1480 ; we have required the return to ‘allege facts tending to establish the legality of petitioner’s detention.’ [Citations.] Those facts are not simply the existence of a judgment of conviction and sentence when the petitioner challenges his restraint in prison. The factual allegations...