People v. Black

• Decision Date: 25 February 2004
• Docket Number: No. B166421.,B166421.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael BLACK, Defendant and Appellant.

10 Cal.Rptr.3d 113

116 Cal.App.4th 103

The PEOPLE, Plaintiff and Respondent, v. Michael BLACK, Defendant and Appellant.

No. B166421.

Court of Appeal, Second District, Division 5.

February 25, 2004.

Certified for Partial Publication.^*

Review Denied May 12, 2004.

Verna Wefald, under appointment by the Court of Appeal, Pasadena, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Marc E. Turchin, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P.J.

Defendant, Michael Black, appeals from his conviction based upon his nolo contendere plea to a felonious aggravated assault charge. In the published portion of this opinion, we discuss issues arising from the failure to commence a retrial within the time period specified by a district court when it conditionally granted defendant's federal habeas corpus petition. We conclude the nolo contendere plea may not be set aside even though it was entered after the expiration of the time permitted for a retrial specified by a district court when it conditionally granted defendant's federal habeas corpus petition.

Defendant was charged with committing various felony offenses on June 29, 1995. Following a jury trial, defendant was convicted of assault with a deadly weapon. (Pen.Code,¹ § 245, subd. (a)(1).) The trial court found that defendant had previously been convicted of a serious felony. (§§ 667, subds. (b)-(d), 1170.12.) Defendant was sentenced on December 13, 1995 to 11 years in state prison. In the unpublished opinion of People v. Black (Feb. 24, 1997, B099656), we affirmed the judgment. On June 1, 1999, defendant filed a habeas corpus petition in the United States District Court for the Central District of California. On August 8, 2001, the district court dismissed the petition with prejudice. Thereafter, on October 19, 2001, defendant appealed to the United States Court of Appeals for the Ninth Circuit. On August 22, 2002, a Ninth Circuit panel filed an unpublished opinion reversing the district court's order dismissing the habeas corpus petition and remanding the matter. The Ninth Circuit panel found that defendant's trial counsel, a deputy public defender, was prejudicially ineffective for failing to interview two witnesses. In an order signed on October 3, 2002, filed on November 4, 2002, and entered on November 5, 2002, the district court judge ruled, "It is ordered and adjudged that a writ of habeas corpus shall issue and respondent shall discharge petitioner from all adverse consequences of his conviction in Los Angeles County Superior Court case [N]o. GA024709, unless, within 60 days from the date of this Judgment and Order, the State of California grants the petitioner a retrial in said case."

No Los Angeles County Superior Court proceedings were held until January 2, 2003, 58 days after the November 5, 2002, entry of the district court order. On January 2, 2003, the prosecutor explained to the trial court that: defendant had been transported from state prison to the county jail for purposes of retrial; defendant was sick and unable to appear on that date; and defendant had requested to be taken to the infirmary. The prosecutor noted that the following day, January 3, 2003, was the fifty-ninth day within which defendant could be brought to trial under the district court's order. Los Angeles County Deputy Public Defender Mark Licker then stated: "Mark Licker, deputy public defender. [¶] I should probably be appearing specially for Mr. Black." Mr. Licker noted that the office of the Alternate Public Defender initially filed a state habeas corpus petition on defendant's behalf. Following a declaration of conflict of interest, Morton Borenstein had been appointed to represent defendant on the habeas corpus petition. Alternate Public Defender Irene Coyle also appeared on January 2, 2003, along with the prosecutor and Mr. Licker. Ms. Coyle indicated that if the alternate public defender was called upon to represent defendant, it would be necessary for her office to determine whether a conflict of interest existed. The trial court issued a bench warrant and ordered the sheriff to produce defendant the following day, January 3, 2003.

On January 3, 2003, defendant was present and Deputy Public Defender Jill Thomas argued that the time for retrial had expired because the order was signed on October 31, 2002, by the district court. Ms. Thomas argued that even if the day the order was filed, November 4, 2002, was determined to be the date from which the 60 days began, it expired on January 3 2003. Ms. Thomas noted that the order was sent by facsimile transmission to the Office of the Los Angeles County District Attorney on November 5, 2003. But no prosecutor sought the issuance of a removal order until mid-December 2003. The removal order set the date for defendant's appearance as January 2, 2003. Ms. Thomas argued, "[B]ecause the retrial was not granted within those 60 days, that the time has passed and [defendant] needs to be discharged." Deputy District Attorney Deborah Kass, who was prepared on that day to try the case, argued that because the district court order was filed on November 4, 2002, and entered on November 5, 2002, both dates fell within the 60-day period. Following further discussion regarding when the 60-day period began, Ms. Thomas, the deputy public defender, who first represented defendant on January 3, 2003, indicated she would not be ready to proceed to trial until such time that she could interview the witnesses. It was agreed between the trial court and counsel that they would return on January 16, 2003, with authority on the 60-day time period for retrial as well as whether a conflict of interest existed between the public defender's office and defendant. The trial court did not rule on Ms. Thomas's request that defendant be discharged from custody. Ms. Thomas did not seek to have the trial court rule on her motion to have defendant discharged from custody. On January 14, 2003, Ms. Thomas reported to the trial court that there was a conflict of interest. In addition, the Alternate Public Defender's Office declared a conflict of interest. Alan Messarra was appointed to represent defendant. At no time during the January 14, 2003, hearing did either Ms. Thomas or Mr. Messarra request defendant's discharge from custody. The matter was then continued to January 21, 2003.

On January 21, 2003, Mr. Messarra requested additional time to address the merits of the dismissal motion. Mr. Messarra asked that defendant be granted an own recognizance release. The own recognizance release request was denied. The matter was continued to January 30, 2003.

On January 30, 2003, Mr. Messarra argued the 60-day period for retrial commenced on October 31, 2002. The matter was then continued to February 10, 2003. On February 10, 2003, the matter was again continued to allow the prosecution to file opposition to the dismissal motion. On February 26, 2003, Mr. Messarra argued that the 60 days began to run when the Ninth Circuit panel issued its mandate on September 13, 2002. The prosecutor argued that the state court had no jurisdiction to retry the case until the district court issued its order. In denying the dismissal motion, the trial court held that the 60-day time period began on November 4, 2002, the date the district court clerk filed the order.

Thereafter, on February 26, 2003, defendant entered a plea of no contest to the assault with a deadly weapon charge in count 3. Also, defendant admitted a prior serious felony conviction allegation was true. Defendant was then sentenced to a term of 4 years doubled to 8 years pursuant to sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), with credit for 4,207 days served including conduct credits. Counts 1 and 2 were dismissed pursuant to the plea agreement.

We agree with the Attorney General that the 60-day time period commenced to run on November 5, 2002, the day the district court order was entered. Rule 58 of the Federal Rules of Civil Procedure (28 U.S.C.) states in part: "Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)." Rule 79(a) of the Federal Rules of Civil Procedure (28 U.S.C.) states in pertinent part: "All papers filed with the clerk, all ... orders ... and judgments shall be entered chronologically in the civil docket.... The entry of an order or judgment shall show the date the entry is made." (See Keating v. Hood (9th Cir.1999) 191 F.3d 1053, 1062-1063, overruled on other grounds in Payton v. Woodford (9th Cir.2003) 346 F.3d 1204, 1218, fn. 18, disapproved on other grounds in Mancuso v. Olivarez (9th Cir.2002) 292 F.3d 939, 944, fn. 1; Radio Television Espanola v. New World Entert. (9th Cir.1999) 183 F.3d 922, 929.) Therefore, the operative date for complying with the district court's order was 60 days from November 5, 2002.

Defendant asserts that he was entitled to be released from custody once the trial did not commence within the 60-day time period specified in the district court's order. We begin by analyzing the scope of the federal court's powers in habeas corpus proceedings brought by state prisoners. The United States Supreme Court has explained: "Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. [Citation.]" (Fay v. Noia (1963) 372 U.S. 391, 430-431, 83 S.Ct. 822, 9 L.Ed.2d 837, disapproved on another point in Keeney v. Tamayo-Reyes (1992) 504 U.S. 1, 4, 112 S.Ct. 1715, 118 L.Ed.2d 318, and Coleman v. Thompson (1991) 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640; Ex parte...