Filed 10/3/17 P. v. Bettencourt CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.

Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Jennifer Lynn Bettencourt (defendant) seeks to appeal from a purported order of the superior court that was entered following a resentencing hearing pursuant to Penal Code section 1170.18.[1] We conclude that court made no order or ruling; hence, the appeal must be dismissed.

LEGAL AND PROCEDURAL HISTORY

“In 2014, the electorate passed initiative measure Proposition 47, known as the Safe Neighborhoods and Schools Act ([Proposition 47]), reducing penalties for certain theft and drug offenses by amending existing statutes. [Citation.]” (People v. Gonzales (2017) 2 Cal.5th 858, 863.) One of those statutes was section 473, which specifies the punishment for forgery. While normally a “wobbler” under subdivision (a) of the statute, subdivision (b) now provides that “any person who is guilty of forgery relating to a check, bond, bank bill, note, cashier’s check, traveler’s check, or money order, where the value of [same] does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year,” unless that person has certain prior convictions not at issue here. Proposition 47 also added section 1170.18, subdivision (a) of which “permits a defendant serving a sentence for one of the enumerated theft or drug offenses to petition for resentencing under the new, more lenient, provisions.” (People v. Gonzales, supra, at p. 863, fn. omitted.) Probationers are entitled to petition for such resentencing. (People v. Garcia (2016) 245 Cal.App.4th 555, 558.) Someone who has already completed a felony sentence may petition to have his or her conviction designated a misdemeanor under section 1170.18, subdivisions (f) and (g). (People v. Gonzales, supra, at p. 863.)

Proposition 47 went into effect on November 5, 2014. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) On February 14, 2015, defendant, without permission, used another person’s credit card and signed the other person’s name on the credit card receipt, to purchase a pack of cigarettes and a cigarette lighter at a gas station in Riverdale. The amount of the purchase was $5.76. By complaint filed March 17, 2015, defendant was charged with felony forgery (§ 484f, subd. (b); count 1), felony second degree commercial burglary (§§ 459, 460, subd. (b); count 2), and misdemeanor petty theft/fraudulent use of an access card or account (§ 484g, subd. (a); count 3). On June 30, 2015, she pled no contest to count 1 as a felony, and the remaining counts were dismissed. On August 12, 2015, imposition of sentence was suspended, and defendant was placed on two years’ formal probation with various terms and conditions.

On February 1, 2016, defendant filed an application for reduction of her felony conviction under Proposition 47. The form application stated she had completed her sentence for an offense that would now be punishable as a misdemeanor.

Defendant requested a hearing on her application. The hearing was held on March 21, 2016. Defendant was not present, but was represented by counsel, who waived defendant’s appearance.[2] The People took the position that the offense to which defendant pled was not covered by Proposition 47, which, the prosecutor asserted, specifically excluded the signing of a defendant’s name on an access card. This ensued:

“[DEFENSE COUNSEL]: . . . I think noting that some of those charges are now before the Supreme Court actually, we would like to impose an objection to the record, and we’ll notify her if she wants to appeal it or not.

“THE COURT: Did you want an evidentiary hearing to establish if the value of the property falls within Prop[osition] 47?

“[DEFENSE COUNSEL]: Perhaps we can just reserve that issue for now. If we do contact her and determine she wants a hearing, we can do something about that. But I think it’s just basically the charge itself is what we’re disputing.

“[PROSECUTOR]: I would also note for the record that the date of the violation, as well as the plea, occurred after Prop[osition] 47 was enacted; so I believe the issue has previously been before a court.

“THE COURT: Oh. That’s true. Already concluded that it wasn’t a misdemeanor.

“[PROSECUTOR]: Correct. The date of violation was 2/14/15 and the plea was 6/30/15. Prop[osition] 47 went into effect November 2014.

“THE COURT: So I’m not going to rule on the Prop[osition] 47 petition, because I’m going to conclude that it’s already been rejected and that the defendant entered a plea to a felony after the passage of Prop[osition] 47.”

Defendant timely filed a notice of appeal on March 30, 2016. Her appointed appellate counsel filed an opening brief that summarized the pertinent facts, raised no issues, and requested this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). The opening brief included the declaration of appellate counsel, stating defendant was advised she could file her own brief with this court. By letter dated August 5, 2016, we invited defendant to submit additional briefing. We received no response.

We subsequently identified a potentially arguable issue and asked the parties to file supplemental briefs concerning whether a defendant is entitled to Wende review of a petition/application for relief brought under section 1170.18 and, if not, whether the instant appeal should be dismissed. In the course of the supplemental briefing, the Attorney General raised, and defendant responded to, an appealability question, namely whether the trial court’s act of declining to rule on the petition constituted an appealable order.

DISCUSSION

“The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. [Citations.] Appeals by criminal defendants are governed by section 1237 . . . .” (People v. Loper (2015) 60 Cal.4th 1155, 1159.)

Defendant contends subdivision (b) of section 1237 authorizes her appeal. That provision permits a defendant to appeal “[f]rom any order made after judgment, affecting the substantial rights of the party.” (Italics added.) Here, the trial court made no order or ruling; rather, it specifically and expressly stated it was not going to rule. This lack of any ruling precludes appellate review. (See Teal v. Superior Court (2014) 60 Cal.4th 595, 600-601.)

Defendant points to the clerk’s minutes of the hearing. Those minutes consist of a preprinted form, the hand-checked boxes of which read: “Court orders . . . No action taken[.]” Handwritten in the margin is the notation: “∆ entered plea after the passage of Prop 47 – as a Felony[.]”

Although the handwritten note correctly summarizes the trial court’s statement, the court in fact made no order that no action be taken. Rather, it declined to make any ruling. The two are simply not the same. Under the circumstances of this case, the reporter’s transcript is the more reliable reflection of what the court actually did, and so it controls over the clerk’s transcript. (See, e.g., People v. Beltran (2013) 56 Cal.4th 935, 945, fn. 7; People v. Lawrence (2009) 46 Cal.4th 186, 194 & fn. 4; People v. Carter (2003) 30 Cal.4th 1166, 1199.)

There being no order or ruling made after judgment, the trial court’s action is not appealable under section 1237, subdivision (b).

DISPOSITION

The appeal is dismissed.