In re McDowell, E072191

• Decision Date: 10 December 2019
• Docket Number: E072191
• Parties: In re JONATHAN DEWITT MCDOWELL on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

In re JONATHAN DEWITT MCDOWELL on Habeas Corpus.

E072191

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

December 10, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.Nos. RIC1709427 SWF1500382, RIF141332)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Ronald L. Johnson (retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Janice M. McIntyre (retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Edward D. Webster (retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), and Chad W. Firetag, Judges.^* Petition denied.

Steven L. Harmon, Public Defender, and William A. Meronek, Deputy Public Defender, for Petitioner.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Seth M. Friedman and Michael P. Pulos, Deputy Attorneys General, for Respondent.

In 2012, in People v. Rodriguez (2012) 55 Cal.4th 1125, the Supreme Court held that the crime of active gang participation (Pen. Code, § 186.22, subd. (a)) is not committed by a gang member who commits a felony alone. In 2015, in People v. Velasco (2015) 235 Cal.App.4th 66, one of our sister courts of appeal held that this crime is not committed by a gang member who commits a felony with a member of another gang.

In this habeas proceeding, petitioner Jonathan Dewitt McDowell seeks to annul his conviction of active gang participation in 2008, on the ground that there was no evidence that he committed a felony with a member of his own gang. By doing so, he also seeks to annul true findings in 2015 on various enhancements based on the 2008 conviction.

We will hold that the habeas petition is untimely. Even assuming that petitioner could not have filed any earlier than 2015, when Velasco was decided, he has failed to explain his delay of over two years after Velasco. Separately and alternatively, we will also hold that the factual premise of petitioner's claim is mistaken. The 2015 enhancements were not based on his 2008 conviction for active gang participation, but rather on his 2008 conviction for sale of a controlled substance, with a gang enhancement (Pen. Code, § 186.22, subd. (b)). Rodriguez and Velasco do not apply to a gang enhancement.

I

FACTUAL BACKGROUND¹

The evidence in the 2008 case showed the following.

Petitioner and two women were sitting in the carport area of an apartment complex in Moreno Valley. A confidential informant approached petitioner and said, "Can I get a dub?" A "dub" is a rock of cocaine.

Petitioner said, "Go get it from [my] sister," motioning toward the women. The informant walked over to one of the women and asked for drugs. She then gave him 0.35 grams of cocaine. A drug expert testified that it is common for a drug dealer to have a woman or a juvenile hold the drugs.

Petitioner was a member of the Unknown Mafia Gang, a clique of the "higher-ups" in a larger gang called Sex Cash Money. The drug sale took place on Sex Cash Money turf. A gang expert testified, in hypothetical form, that petitioner's drug sale benefited his gang.

Chris Thomas, a member of the South Side Compton Crips, helped petitioner make the sale by acting as a lookout.

II

PROCEDURAL BACKGROUND

In the 2008 case, petitioner was found guilty on two counts:

Count 1: Sale or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), with a gang enhancement (Pen. Code, § 186.22, subd. (b)).

Count 2: Active gang participation (Pen. Code, § 186.22, subd. (a)).

He was sentenced to a total of six years eight months in prison.

Petitioner appealed to this court. He did not argue insufficiency of the evidence. We modified the sentence, based on Penal Code section 654, but otherwise we affirmed.

By July 28, 2013, petitioner had served his time and was no longer in custody or on parole.

In the 2015 case, petitioner was charged with making a criminal threat. (Pen. Code, § 422.) His prior conviction on count 1 in the 2008 case² was alleged as a strike prior (Pen. Code, §§ 667, subd. (b)-(i), 1170.12) and a prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)).³ A jury found petitioner guilty of the charged offense. In a bifurcated proceeding, it also found the prior conviction allegations to be true.

Petitioner was sentenced to prison for a total of 12 years. This included the doubling of the principal term based on the strike prior and an additional five year term based on the prior serious felony conviction enhancement.

Once again, petitioner appealed to this court. He did not challenge the enhancements. We affirmed.

In 2017, petitioner filed a habeas petition in the trial court, alleging that, in hindsight, under Rodriguez, there had been insufficient evidence to support the gang findings in the 2008 case.

In 2018, the trial court denied the petition. Petitioner sought review by filing a habeas petition in this court, but we denied it summarily.

Petitioner then sought review by filing a habeas petition in the Supreme Court. The Supreme Court issued an order to show cause, returnable before this court.

III

THE EFFECT OF THE SUPREME COURT'S ORDER TO SHOW CAUSE

"In issuing an order to show cause in . . . a [habeas] proceeding, a court makes 'an implicit preliminary determination' as to claims within the order that the petitioner has carried his burden of allegation, that is, that he 'has made a sufficient prima facie statement of specific facts which, if established, entitle him to . . . relief . . . .' [Citation.] That determination, it must be emphasized, is truly 'preliminary': it is only initial and tentative, and not final and binding." (In re Sassounian (1995) 9 Cal.4th 535, 547.)

"[The Supreme Court's] direction to an appellate court to issue an order to show cause why the relief sought in the petition should not be granted 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.) More specifically, the issuance of an order to show cause represents "a preliminary determination that [the petitioner] has proceeded in a timely manner. [Citation.]" (In re Morrall (2002) 102 Cal.App.4th 280, 286, fn. 1.)

"[W]hen the Supreme Court, in response to a habeas corpus petition, issues an order to show cause returnable before a lower court, the lower court must decide theissues before it on their merits. . . . It is not, however, the equivalent of a final appellate decision on questions of law, nor does it constitute law of the case. [Citation.]" (In re Orosco (1978) 82 Cal.App.3d 924, 927; accord, Hudson v. Superior Court (2017) 7 Cal.App.5th 1165, 1170, fn. 4.)

For completeness' sake, we note that, at least in mandate cases, the issuance of an order to show cause "necessarily" determines that appeal is not an adequate remedy. (See Langford v. Superior Court (1987) 43 Cal.3d 21, 27 [issuance of alternative writ].) Accordingly, again in mandate cases, this court and other courts have said that "issuance of the order to show cause operates as a conclusive finding that the remedy by way of appeal would not be adequate. [Citation.]" (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 99, fn. 5; accord, People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, 572; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 488.) Assuming such cases apply in a habeas proceeding at all, the Supreme Court's issuance of an order to show cause conclusively determines only the inadequacy of other remedies, not the timeliness of the petition nor the existence of any other procedural bar. (Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 939.)

IV

THE TIMELINESS OF THE PETITION

The People assert the following procedural bars: (1) petitioner is not in custody on the 2008 conviction; (2) petitioner could have raised his claim on direct appeal; (3) asufficiency of the evidence claim is not cognizable on habeas; and (4) the petition is untimely.⁴

In part V, post, we consider (in a limited way) the assertion that petitioner is not in custody on the 2008 conviction. Otherwise, while we have not considered these procedural bars in depth and we express no holding with respect to them, they strike us as weak — with the exception of untimeliness.

"A criminal defendant mounting a collateral attack on a final judgment of conviction must do so in a timely manner. [Citation.] Thus, a petitioner is required to explain and justify any significant delay in seeking habeas corpus relief. [Citation.] An unjustified delay in presenting a claim bars consideration of the merits. [Citations.]" (In re Sims (2018) 27 Cal.App.5th 195, 204-205.)

"[T]he petitioner has the burden of establishing (i) absence of substantial delay, (ii) good cause for the delay, or (iii) that the claim falls within an exception to the bar of untimeliness. [¶] Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. A petitioner must allege, with specificity, factsshowing when information offered in support of the claim was obtained, and that the information neither was known, nor reasonably should have been known,...