Filed 10/18/18 P. v. Witkin CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Michael Aaron Witkin appeals from the denial of his motion to vacate a 2005 prior conviction pursuant to Penal Code section 1473.7.[1] We reverse and remand to the trial court for further proceedings.

BACKGROUND

Writing from Solano Prison in August 2017, defendant moved to vacate a 2005 conviction pursuant to section 1473.7. The trial court denied the motion without prejudice to a petition for a writ of habeas corpus on the same ground, explaining section 1473.7 applies to defendants “no longer imprisoned or restrained” and that defendant did “not qualify for relief under that section because he is currently incarcerated based on the conviction in that case.”

Defendant moved for reconsideration, explaining he had been released from custody on the 2005 conviction in November 2010. Because he was no longer imprisoned or restrained by the 2005 conviction--the conviction he sought to vacate--section 1473.7 was his sole means of challenging it. In a declaration in support of his motion for reconsideration, defendant averred that on December 9, 2005, he had been sentenced to a two-year prison term to be followed by a three-year term of parole. In November 2010 he “discharged custody.”

He also attached a “Legal Status Summary.” It reflected that he was sentenced to a two-year term on December 9, 2005. Under the heading “status,” the form indicates, “Discharged (Time Served).” But the field next to status (presumably indicating the date of discharge) is cut off. The summary also indicates that in May 2009, defendant received a 21-year term in a separate conviction for a June 6, 2007, robbery.

The trial court denied the motion for reconsideration. It noted a habeas petition to challenge a conviction is available to a person physically imprisoned or on parole. It also noted the date of discharge on the legal status summary was not visible, and the summary failed to indicate if defendant was discharged from custody or parole.

On appeal, defendant challenges the denial of his motion.[2]

DISCUSSION

Section 1473.7 permits a person “no longer imprisoned or restrained” to move to vacate a conviction on grounds including discovery of evidence of actual innocence. (§ 1473.7, subd. (a)(2).) Before the passage of section 1473.7, a person no longer in custody or restrained on a prior conviction could not challenge it, because challenge by a habeas petition required a defendant be in custody on that conviction. (See People v. Morales (2018) 25 Cal.App.5th 502; Legis. Counsel’s Dig., Assem. Bill No. 813, (2015-2016 Reg. Sess.) Stats. 2016, ch. 739, § 1.) Section 1473.7 also directs that, “All motions shall be entitled to a hearing.” (§ 1473.7, subd. (d).)

Defendant argues he was entitled to a hearing because he was no longer in custody on the 2005 conviction, and because he is not in custody on that conviction, a habeas petition is not available to him. The People respond that the denial was proper because defendant failed to show he was no longer in custody on that case. The People assume an unassailable threshold showing of non-custodial status is required to obtain a hearing. They argue the material defendant supplied reasonably suggests he was still incarcerated on the two-year sentence imposed in 2005, and he “arguably” could still be within his (three-year) term of parole for that conviction.

We find defendant has made a sufficient showing of his non-custodial status (related to his 2005 conviction) to entitle him to be heard on his motion.

Defendant provided a declaration averring that he had been discharged from custody related to the 2005 case in November 2010, which would be approximately five years after he received a five-year aggregate custodial term (including the term of parole). Defendant also provided a status summary showing his conviction was discharged. Indeed, it is unclear how defendant’s two-year prison term and three-year parole term, imposed in 2005, would fail to run by 2017, when there is no indication defendant escaped or was continuously imprisoned since 2005. (See § 3000 [“Except as provided in Section 3064 [pertaining to escaped parolees], in no case may a prisoner subject to three years on parole be retained under parole supervision or in custody for a period longer than four years from the date of his or her initial parole”].)

Defendant is entitled to be heard as to his eligibility to file the motion; if he is eligible, he is entitled under the statute to be heard on the merits of his motion. Any lingering issues and nuances as to defendant’s custody status can be addressed at the hearing on the motion. We therefore reverse the order denying defendant’s motion and remand for further proceedings.

DISPOSITION

The order denying the motion to vacate pursuant to section 1473.7 is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.

/s/

Duarte, J.

We concur:

/s/

Raye, P. J.

/s/

Murray, J.