People v. Benavides

• Decision Date: 07 June 2002
• Docket Number: No. F037844.,F037844.
• Citation: 120 Cal.Rptr.2d 755,99 Cal.App.4th 100
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Vicente Figueroa BENAVIDES, Defendant and Respondent.

120 Cal.Rptr.2d 755

99 Cal.App.4th 100

The PEOPLE, Plaintiff and Appellant, v. Vicente Figueroa BENAVIDES, Defendant and Respondent.

No. F037844.

Court of Appeal, Fifth District.

June 7, 2002.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Arnold 0. Overoye, Assistant Attorney General, and Brian R. Means, Deputy Attorney General, for Plaintiff and Appellant.

Michael Laurence, Cristina Borde, Melissa Hooper; Lynne S. Coffin, State Public Defender, and Kent Barkhurst, Deputy State Public Defender, under appointments by the Supreme Court, for Defendant and Respondent.

OPINION

VARTABEDIAN, Acting P.J.

In 1993, Vicente Figueroa Benavides was found guilty of first degree murder with special circumstances and sentenced to death. An automatic appeal to the California Supreme Court followed. (Pen. Code, § 1239, subd. (b).)¹ The Supreme Court appointed appellate counsel to handle his appeal and later, in 1999, appointed the Habeas Corpus Resource Center his counsel in this proceeding, to represent Benavides in his habeas corpus proceedings before that court.

In August 2000 the People filed a motion in superior court to restrict juror contact by Benavides or anyone acting or working on his behalf, benefit, or interest. The People sought an order requiring Benavides or his representatives to show good cause and to obtain court approval before contacting former jurors in the case. In addition to the above, or as an alternative, the People asked the court to order that Benavides or his representatives be limited in contacting former jurors through the court only. As a third additional requirement, or in the alternative to the above requirements, the People sought an order that any posttrial questioning of jurors be conducted under the direct supervision and control of the court, with inquiry restricted to those matters found by the court as both relevant and proper under Evidence Code section 1150.

On February 2, 2001, after the matter had been briefed and the parties had made their arguments at hearings, the superior court filed an order granting the motion in part, holding that if the parties contact a juror they must abide by the rules set forth in Code of Civil Procedure section 206 and must read verbatim to the juror the court's predischarge admonition. In all other respects the motion was denied. The People appeal this order. We dismiss the appeal as taken from a nonappealable order.

Discussion

The People make three alternative claims. Two of those alternatives are requests that we declare a new rule of criminal procedure: (1) a rule prohibiting litigants and their agents from contacting former jurors absent a preliminary showing of good cause; or (2) a rule of criminal procedure requiring that juror interviews, when warranted, be conducted under the direct supervision of the trial court. Alternatively, the People claim the trial court abused its discretion in refusing to limit postverdict juror interrogations by the litigants.

Benavides raises several issues regarding the appealability of the February 2, 2001, order in general. He asserts we lack jurisdiction to hear the matter because the California Supreme Court has exclusive appellate jurisdiction when a judgment of death has been pronounced. Next, he argues the appropriate vehicle for review of the order is a petition for writ of mandate.² Finally, Benavides claims the order is not appealable because it does not affect the substantial rights of the People in enforcing the judgment.

We agree with Benavides that the order appealed from is not an appealable order because it does not affect the People's substantial rights as delineated in statutory and case law.

"`The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases' [citation]. Those circumstances are enumerated in [Penal Code] section 1238." (People v. Drake (1977) 19 Cal.3d 749, 754, 139 Cal.Rptr. 720, 566 P.2d 622.) Relevant here is subdivision (a)(5) of section 1238. It provides that the People may take an appeal from "[a]n order made after judgment, affecting the substantial rights of the people."³ "[T]he courts are precluded from so interpreting section 1238 as to expand the People's right of appeal into areas other than those clearly specified by the Legislature." (People v. Gaines (1980) 112 Cal. App.3d 508, 512, 169 Cal.Rptr. 381.)⁴

The People argue the order is appealable because it affects their substantial rights. In particular they assert they "have a substantial interest in protecting both the finality and integrity of the verdict, and the trial court's order denying the People's motion to impose reasonable limits on juror contact adversely affects these interests." The People contend juror manipulation and tampering result in unnecessary delay that substantially and adversely affects their right to finality. They claim this concern is particularly true here where the defendant has been sentenced to death and the People are precluded from executing the sentence until postconviction review is completed.

"In People v. Garcia (1931) 120 Cal.App. Supp. 767, 7 P.2d 401, the court stated in order to affect the People's substantial rights an order `must in some way affect the judgment or its enforcement or hamper the further prosecution of the particular proceeding in which it is made. [Citations.]' (Id. at p. Supp. 770, 7 P.2d 401.)" (People v. McGuire (1993) 14 Cal.App.4th 687, 701, 18 Cal.Rptr .2d 12.)

Although the People have been allowed in other cases to appeal from a variety of orders that fall within section 1238, subdivision (a)(5), the holding of appealability has typically been made without a guiding discussion. Examples include: (1) an order erroneously granting a defendant credits against his or her prison sentence (People v. Minjarez (1980) 102 Cal.App.3d 309, 311-312, 162 Cal.Rptr. 292); (2) a certificate of rehabilitation issued to a defendant before the period of rehabilitation required by law has been completed (Daudert v. People (1979) 94 Cal.App.3d 580, 582-585, 156 Cal.Rptr. 640); (3) an order granting probation (People v. Warner (1978) 20 Cal.3d 678, 681-682, 143 Cal. Rptr. 885, 574 P.2d 1237)⁵; (4) an order erroneously staying sentence pursuant to section 654 (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2, 153 Cal.Rptr. 40, 591 P.2d 63; People v. Holly (1976) 62 Cal. App.3d 797, 801-802, 133 Cal.Rptr. 331); and (5) an order reducing a felony to a misdemeanor (People v. Douglas (1999) 20 Cal.4th 85, 96, 82 Cal.Rptr.2d 816, 972 P.2d 151).

Other cases have offered brief explanations why the appeal satisfies the requirements of section 1238, subdivision (a)(5). One such case is People v McGuire, supra, 14 Cal.App.4th 687, 18 Cal.Rptr.2d 12. There, after the trial court ordered McGuire be allowed to post bail pending appeal, the appellate court found the People could appeal the order because "[t]he order releasing a convicted felon into society affects enforcement of the judgment and implicates the People's substantial rights to security." (Id. at p. 701, 18 Cal.Rptr.2d 12.)

The appellate court explained the People's substantial interest in People v. Maggio (1929) 96 Cal.App. 409, 274 P. 611. After the defendant's appeal was final and the remittitur had issued, the defendant made a motion to modify the judgment of imprisonment to a fine. The trial court granted the motion. The People appealed and the appellate court found the order was appealable. "The People have a right to rely upon the finality of judgments and to know when a judgment has become final that there has been an end to that particular litigation." (Id. at p. 410, 274 P. 611.) The judgment against the defendant had been entered and affirmed and the People had an interest in maintaining its integrity. (Id. at p. 411, 274 P. 611.)

In People v. Gilbert (1944) 25 Cal.2d 422, 154 P.2d 657 the defendants pleaded guilty to murder and admitted special circumstances. A judgment of death was entered and affirmed on appeal to the Supreme Court. After the Supreme Court had issued the remittitur, affirming the judgments, one defendant made a motion to vacate the judgment and his plea; the other made a motion to vacate the judgment. The trial court found the judgments null and void and pronounced new judgments of life imprisonment. (Id. at pp. 425-426, 154 P.2d 657.) The People appealed and the Supreme Court found they had a right to appeal. "The effect of the order here appealed from was to modify substantially the judgments originally entered. Such an order, obviously, is one `made after judgment, affecting the substantial rights of the people' and is within the purview of section 1238(5) of the Penal Code." (Id. at p. 444, 154 P.2d 657.)

In each of the above cases, the orders entered by the trial court and appealed by the People either directly altered the judgment or somehow directly affected the defendant's status as it related to the judgment already imposed.

The People here rely on People v. White (1978) 144 Cal.Rptr. 128, 77 Cal.App.3d Supp. 17 (White) and People v. Pogre (1986) 234 Cal.Rptr. 590, 188 Cal.App.3d Supp. 1 (Pogre) to support their argument of appealability by illustrating the breadth of section 1238, subdivision (a)(5). In White, the trial court found White not guilty of two misdemeanor offenses. Subsequently, the court found he was factually innocent of the charges and sealed White's arrest records. The People appealed from the order sealing the arrest records. (White, supra, at p. Supp. 19, 144 Cal. Rptr. 128.) The superior court, appellate division found that an order granting a petition to seal arrest records affects the substantial rights of the People because "the retention of an arrest record may, in a proper case, serve an important public interest (Loder v. Municipal Court (1976) 17 Cal.3d 859, 132 Cal.Rptr. 464, 553 P.2d 624)." (Id....