PEOPLE v. NESBITT









Filed 12/22/10




CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PHILLIP NESBITT, Defendant and Appellant.

B218373 (Los Angeles County Super. Ct. No. GA065151)

STORY CONTINUE FROM PART I….


This case is closer to the recent decision in Jackson v. Superior Court (2010) 189 Cal.App.4th 1051 (Jackson). In that case, the defendant was sentenced following judgments of conviction on two felony counts. (Id. p. 1056.) The defendant thereafter filed a petition for a writ of habeas corpus in the Court of Appeal contending that he was entitled to a new trial because the prosecutor had failed to disclose certain evidence in violation of Brady v. Maryland (1963) 373 U.S. 83. (Ibid.) The Court of Appeal issued an order to show cause returnable in the trial court why the defendant was not entitled to the relief requested. (Ibid.) In response, the trial court issued an order granting the habeas corpus petition without specifying the relief to which the defendant was entitled. (Ibid.) The prosecution filed a motion for reconsideration arguing that additional facts had come to light. (Ibid.) The trial court granted that motion and vacated its previous order granting the habeas corpus petition. (Ibid.)
The defendant in Jackson, supra, 189 Cal.App.4th 1051 then filed a petition for writ of mandate and/or prohibition (mandate petition) in the Court of Appeal, contending that the trial court had exceeded its jurisdiction by granting the motion for reconsideration and vacating its order. (Id. at p. 1056.) The Court of Appeal summarily denied the petition. (Ibid.) But the Supreme Court granted review and ordered the Court of Appeal to vacate its order denying the mandate petition and to issue an order directing the trial court to show cause why a writ of mandate should not issue. (Ibid.)
In determining the merits of the defendant’s mandate petition, the Court of Appeal in Jackson, supra, 189 Cal.App.4th 1051 analyzed the power of the trial court to reconsider its order granting the habeas corpus petition. (Id. at pp. 1065-1068.) Relying on the earlier decision in People v. Castello (1996) 65 Cal.App.4th 1242 (Castello), the court in Jackson began the analysis by noting the scope of a criminal trial court’s inherent power to reconsider its rulings. “‘In criminal cases there are few limits on a court’s power to reconsider interim rulings. [Citations.]’ ([Castello, supra,] 65 Cal.App.4th 1242, 1246 [77 Cal.Rptr.2d 314] (Castello).) ‘The California Supreme Court has often recognized the “inherent powers of the court . . . to insure the orderly administration of justice.” [Citations.]’ (Id. at p. 1247.) ‘A court’s inherent powers are wide. [Citations.] They include authority to rehear or reconsider rulings: “[T]he power to grant rehearings is inherent,—is an essential ingredient of jurisdiction, and ends only with the loss of jurisdiction.” [Citations.]’ (Id. at p. 1248.) ‘A court could not operate successfully under the requirement of infallibility in its interim rulings. Miscarriage of justice results where a court is unable to correct its own perceived legal errors, particularly in criminal cases where life, liberty, and public protection are at stake. Such a rule would be “‘. . . a serious impediment to a fair and speedy disposition of causes . . . .’ [Citations.]” [Citation.]’ (Id. at p. 1249.)” (Jackson, supra, 189 Cal.App.4th at p. 1065.)
The court in Jackson, supra, 189 Cal.App.4th 1051 next explained the effect that the filing of a notice of appeal has on a trial court’s jurisdiction. “‘The general rule is that “‘“[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur’ [citation], thereby divesting the trial court of jurisdiction over anything affecting the judgment. [Citations.]”’ [Citations.] “‘The purpose of the rule depriving the trial court of jurisdiction in a case during a pending appeal is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by altering the appealed judgment . . . by conducting other proceedings that may affect it.’ [Citation.]” [Citation.]’ ([People v. Superior Court (Gregory)] 129 Cal.App.4th [324,] 329.) [T]his rule applies where habeas corpus proceedings are concerned [citation] . . . .’ (Ibid.) Thus, a timely filed notice of appeal by the People from an order granting habeas corpus relief by the superior court divests the superior court of jurisdiction over anything affecting the judgment until determination of the appeal and issuance of the remittitur. (Ibid.)” (Jackson, supra, 189 Cal.App.4th at p. 1065.)
At the time the trial court in Jackson, supra, 189 Cal.App.4th 1051 reconsidered its order granting the habeas corpus petition, the time to appeal had not expired and no appeal had been filed. Thus, the court in Jackson concluded that the trial court retained the inherent power to reconsider its ruling on the habeas corpus petition. In so concluding, the Court of Appeal said, “[T]he [trial] court had the inherent power to reconsider its order granting the petition for writ of habeas corpus, and that power would only end with its loss of jurisdiction. (Castello, supra, 65 Cal.App.4th at p. 1248.) The loss of jurisdiction for purposes of reconsideration of the ruling would occur when the order became final and binding, or when the People filed a notice of appeal from the order. [Citations.] . . . As the People had not yet filed a notice of appeal when the [trial] court granted reconsideration, the [trial] court had retained its inherent power to reconsider and vacate the order granting the petition for writ of habeas corpus.” (Jackson, supra, 189 Cal.App.4th at pp. 1067-1068.)
As noted, when the trial court in this case reconsidered the dismissal order, the trial was ongoing and no final judgment had been rendered in the case from which an appeal could have been taken. Moreover, the prosecution had not sought relief by an extraordinary writ proceeding and, presumably, could have refiled the criminal charges alleged in the dismissed counts. As a result, the trial court had not been divested of jurisdiction over the cause. It therefore had the inherent power to reconsider the dismissal order, as long as it gave due consideration to the issue. (Castello, supra, 65 Cal.App.4th at p. 1250 [to the extent Code of Civil Procedure section 1008 applies to a criminal proceeding, it requires only that trial courts exercise due consideration before modifying, amending, or revoking prior orders].) In reconsidering its dismissal order, the trial court considered the authorities cited by both parties concerning the grounds for the dismissal order and the trial court’s power to vacate and reinstate the dismissed counts. After hearing further argument, the trial court concluded that it had made a legal error in dismissing counts 4 and 5 and that it had the jurisdiction to reconsider those dismissals in light of that error. Thus, the trial court’s proper exercise of due consideration establishes that the reconsideration of the dismissal order was an act within its inherent power.
That the trial court’s dismissal order was reflected in a minute order did not necessarily divest the trial court of jurisdiction to reconsider that order. The determining factor is whether the order is deemed to be final or interim.
In People v. DeLouize (2004) 32 Cal.4th 1223 (DeLouize), the trial court granted a motion for new trial, and, after the time to appeal that ruling had expired, the prosecution filed a motion to reconsider the court’s new trial order. (Id. at p. 1227.) The issue for the Supreme Court to determine was whether an order granting a new trial was an interim order that could be reconsidered by the trial court or a final order over which the trial court had no authority to reconsider. The court in DeLouize first noted the long-standing rule that, in criminal cases, orders denying new trial motions cannot be reconsidered by the trial court. “This court has held that, in a criminal case, a trial court that has denied a motion for a new trial lacks authority to consider and grant a second or renewed motion for a new trial. (People v. Martin (1926) 199 Cal. 240 [248 P. 908]; People v. Fice (1893) 97 Cal. 459 [32 P. 531]; see also In re Levi (1952) 39 Cal.2d 41, 45, fn. * [244 P.2d 403].)^[[1]] But we have not previously decided whether, in a criminal case, a trial court is similarly prohibited from reconsidering an order granting a new trial.” (DeLouize, supra, 32 Cal.4th at p. 1228.)
The court in DeLouize, supra, 32 Cal.4th 1223 then explained the fundamental difference between interim and final orders. “Generally speaking, courts may correct judicial error in the making of interim orders or in limine rulings until pronouncement or entry of a judgment. (See People v. Jackson (1996) 13 Cal.4th 1164, 1205 [56 Cal.Rptr.2d 49, 920 P.2d 1254]; People v. Eggers (1947) 30 Cal.2d 676, 692 [185 P.2d 1].) On the other hand, judicial error in the making of a final order or judgment ‘may not be corrected except pursuant to statutory procedures’ or on the limited grounds available for a collateral attack. (Minardi v. Collopy (1957) 49 Cal.2d 348, 353 [316 P.2d 952]; accord, Gill v. Epstein (1965) 62 Cal.2d 611, 615 [44 Cal.Rptr. 45, 401 P.2d 397]; Estate of Doane (1964) 62 Cal.2d 68, 71 [41 Cal.Rptr. 165, 396 P.2d 581]; Smith v. Superior Court (1981) 115 Cal.App.3d 285, 288-290 [171 Cal.Rptr. 387].)” (DeLouize, supra, 32 Cal.4th at p. 1231, footnote omitted.)
According to the court in DeLouize, supra, 32 Cal.4th 1223, the issue of whether an order is interim should be analyzed in light of the policies underlying the concept of finality of judgments. “Although courts have sometimes used appealability as a test for distinguishing final orders from interim orders (see, e.g., Robbins v. Los Angeles Unified School District (1992) 3 Cal.App.4th 313, 317 [4 Cal.Rptr.2d 649]; Jones v. Sieve (1988) 203 Cal.App.3d 359, 370 [249 Cal.Rptr. 821]), a better approach here, we think, is to analyze the issue in terms of the policies underlying the general concept of finality. Orders and judgments are deemed final in the superior court, and not subject to reconsideration by that court, to preserve confidence in the integrity of judicial procedures and to avoid the delays and inefficiencies associated with repeated examination and relitigation of the same facts and issues. (See Custis v. United States (1994) 511 U.S. 485, 497 [128 L.Ed.2d 517, 114 S. Ct. 1732].) The concept of finality ‘rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.’ (In re Crow (1971) 4 Cal.3d 613, 622-623 [94 Cal.Rptr. 254, 483 P.2d 1206]; accord, In re Rogers (1980) 28 Cal.3d 429, 438 [169 Cal.Rptr. 222, 619 P.2d 415].) This court has recognized that ‘[e]ndless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice . . . .’ (Pico v. Cohn (1891) 91 Cal. 129, 134 [25 P. 970]; accord, United States v. Throckmorton (1878) 98 U.S. 61, 68-69 [25 L.Ed. 93]; Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 11 [74 Cal.Rptr.2d 248, 954 P.2d 511].)” (DeLouize, supra, 32 Cal.4th at p. 1232.)
The court in DeLouize, supra, 32 Cal.4th 1223, characterized an order granting a new trial in a criminal case as interim in nature. “An order granting a new trial is not final in the sense of being a final resolution of the case or a final determination of the defendant’s guilt or innocence. On the contrary, an order granting a new trial ‘does not finally dispose of the matter.’ (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387 [93 Cal.Rptr. 769, 482 P.2d 681].) In a criminal case, ‘[t]he granting of a new trial places the parties in the same position as if no trial had been had.’ (Pen. Code, § 1180.) Thus, an order granting a new trial is an interim order in the sense that it requires further proceedings before the case may be resolved and judgment may be pronounced.” (DeLouize, supra, 32 Cal.4th at p. 1231.) Accordingly, the court in DeLouize held that “in this case, the order granting a new trial was an interim order that the trial court could reconsider, even after the time for the prosecution to take an appeal had expired.” (DeLouize, supra, 32 Cal.4th at p. 1233.)
In contrast to an order that disposes of the matter, such as, for example, an order denying a motion for new trial, the order here was entered at the beginning of the trial based on a nonstatutory motion unrelated to the sufficiency of the evidence that challenged only two of the counts—4 and 5. The dismissal order was not final “in the sense of being a final resolution of the case or a final determination of . . . defendant’s guilt or innocence.” (DeLouize, supra, 32 Cal.4th at p. 1231.) There was no factual determination of defendant’s innocence on those counts. Additional and significant procedures were required before the case could be resolved fully and finally and judgment pronounced.
Under these circumstances, in which the trial court dismissed the two counts based on the incorrect assumption that the limitations period in section 800 applied to them, the trial court had inherent authority to reverse that ruling, even if entered, when it discovered that the extended statute of limitation in section 803, subdivision (f) applied. The ruling, which was made just one day after entry of the dismissal order, did not offend any of the policies underlying the concept of finality of judgments because it did not involve the delay or inefficiencies associated with repeated examination and relitigation of the same facts and issues.
Unlike the judgment and the dismissal order at issue in the decisions upon which defendant relies, the trial court in this case entered the dismissal order well before any final resolution of the case. Thus, those cases arose in distinct procedural contexts following the termination of the proceedings in the trial court, circumstances that distinguish them from this case and explain their jurisdictional holdings. Although it is arguable that the dismissal of two counts constituted a final order as to those two counts, the better rule is that a dismissal of a count on an issue of law, when others are still to be tried, may be viewed as interim and reconsidered, particularly when there is no prejudice to the defendant.
B. Failure to Instruct With CALCRIM No. 1193
Defendant contends that the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 1193^[2] because the prosecutor elicited testimony on “child sexual abuse accommodation syndrome” (abuse accommodation syndrome) from the prosecution’s expert psychologist. According to defendant, the trial court’s failure to give that instruction constituted prejudicial error. The Attorney General argues that there is no sua sponte duty to instruct with CALCRIM No. 1193 and therefore that defendant forfeited this contention by failing to request a CALCRIM No. 1193 limiting instruction at trial.
As the Attorney General notes, several courts of appeal have held that, when requested to do so, a trial court has a duty to give an instruction limiting the purposes for which expert testimony about abuse accommodation syndrome may be used. (See People v. Stark (1989) 213 Cal.App.3d 107, 116; People v. Sanchez (1989) 208 Cal.App.3d 721, 735; People v. Bothuel (1988) 205 Cal.App.3d 581, 587-588.); People v. Bowker (1988) 203 Cal.App.3d 385, 393.) According to those cases, such a limiting instruction is required when requested because it limits the risk the jury will rely on abuse accommodation syndrome testimony as direct evidence that abuse occurred, rather than for the limited purpose of evaluating the credibility of an abuse victim’s testimony. (See People v. Bowker, supra, 203 Cal.App.3d at 393.)
Nevertheless, defendant contends that People v. Housley (1992) 6 Cal.App.4th 947, 957-959 (Housely) controls. That case holds that a trial court must instruct sua sponte with CALCRIM No. 1193 whenever abuse accommodation syndrome evidence has been offered. That aspect of the holding in Housley, however, has not been followed or cited by any other court. And it is inconsistent with the plain language of Evidence Code section 355 which provides that “[w]hen evidence is admissible . . . for one purpose and is inadmissible [for] another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Italics added.) Because the cases cited by the Attorney General are consistent with the plain language of Evidence Code section 355 and no other published opinion has approved of the sua sponte duty recognized in Housley, supra, 6 Cal.App.4th 947, we conclude that the trial court did not have a sua sponte duty to instruct with CALCRIM No. 1193 and that defendant forfeited his claim of instructional error by failing to request a limiting instruction under CALCRIM No. 1193.
Moreover, in Housley, supra, 6 Cal.App.4th 947, the court went on to hold that the failure to give the instruction was not prejudicial: “[The expert] twice told the jury she had not met the victim and had no knowledge of the case. Her testimony was couched in general terms, and described behavior common to abused victims as a class, rather than any individual victim. In the face of this testimony, it is unlikely the jury interpreted her statements as support for [the victim’s] credibility.” (People v. Housely, supra, 6 Cal.App.4th at p. 959.)
Even if we determined the trial court had a sua sponte duty to instruct with CALCRIM No. 1193, we would nevertheless conclude that its failure to do so was not prejudicial. As in Housley, supra, 6 Cal.App.4th 947, the expert in this case confirmed that she had not interviewed the victims, and she couched her testimony in general terms describing the behavior of abuse victims as a class. She also based most of her testimony on her experience and statistics, not on the victims’ statements or on the alleged incidents of abuse. Given the nature of her testimony, it is unlikely that the jury interpreted her statements as support for the victims’ credibility.



C. CALCRIM No. 330
Defendant argues that the trial court improperly instructed the jury with CALCRIM No. 330.^[3] According to defendant, that instruction unfairly bolstered the credibility of defendant’s youngest child, C. N., who was eight years old when she testified to an uncharged act of molestation by defendant that occurred when she was four. The Attorney General contends, inter alia, that defendant forfeited this claim of instructional error by failing to object in the trial court. Defendant counters by claiming that when an instruction incorrectly states the law, no objection in the trial court is required, citing People v. Smithy (1999) 20 Cal.4th 936 and People v. Flood (1998) 18 Cal.4th 470.
We agree with the Attorney General that defendant forfeited this issue by failing to object or offer a clarifying instruction in the trial court. Contrary to defendant’s assertion, CALCRIM No. 330 is a correct statement of the law. As defendant concedes, at least three appellate courts have held that the predecessor to CALCRIM No. 330—CALJIC No. 2.20.1^[4]—correctly stated the law. (See People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-1394; People v. Harlan (1990) 222 Cal.App.3d 439, 454-456.) Because CALCRIM No. 330 is substantially similar to CALJIC No. 220.1, the conclusions in Jones, Gilbert, and Harlan that CALJIC No. 220.1 correctly states the law applies with equal force to CALCRIM No. 330.
When an instruction incorrectly states the law, it is a defendant’s obligation to request a clarifying or amplifying instruction concerning the subject matter of the instruction. (People v. Geier (2007) 41 Cal.4th 555, 579, quoting People v. Kimble (1988) 44 Cal.3d 480, 503.) Failure to request such clarification or amplification forfeits any claim of instructional error. (Ibid.) Because defendant did not request a clarifying or amplifying instruction in the trial court, he has forfeited his challenge on appeal to CALCRIM No. 330.

D. Unauthorized Sentence
Defendant maintains that the sentence imposed on count 6—continuous sexual abuse of A.N. in violation of section 288.5—was unauthorized. Defendant explains that he received a “One Strike” sentence under section 667.61,^[5] even though section 288.5 was not listed in section 667.61 as a qualifying crime at the time defendant committed that offense. The Attorney General agrees with defendant’s analysis.
The sentence on count 6 was unauthorized. Although section 667.61 currently lists continuous sexual abuse in violation of section 288.5 as a qualifying offense for purposes of One Strike sentencing, that offense was not added to section 667.61 until 2006. The conduct against A.N. alleged in count 6 took place between November 1999 and November 2000. At that time, section 667.61 did not authorize One Strike sentencing for a violation of section 288.5. (See People v. Palmer (2001) 86 Cal.App.4th 440, 443-446 [because section 667.61 did not include a violation of section 288.5 as a qualifying offense for purposes of One Strike sentencing, a 15 years to life sentence under the One Strike law for a violation of section 288.5 was unauthorized].) The One Strike sentence imposed on count 6 therefore must be reversed.

E. Attorney Fees Order
Defendant argues that the trial court erred when it ordered him to reimburse the County for $8,674.06 in attorney fees without holding the noticed hearing required under section 987.8, subdivision (b).^[6] The Attorney General suggests that the issue may have been forfeited, but asserts that even if it has not been forfeited, the issue should be remanded to the trial court for a noticed hearing on defendant’s ability to pay attorney fees.
The record does not reflect that defendant received any advance notice of the trial court’s intent to consider an order requiring defendant to pay attorney fees. Nor does the record show that the trial court held a hearing concerning defendant’s ability to pay attorney fees. Instead, at the end of the sentencing hearing, the trial court stated, “There is a victim restitution fine, pursuant to law, of $10,000; sexual habitual offender fee of Penal Code section 290.3, $300 concurrent; the court security fees of $180; conviction fees, $188; public defender fee $8,674.06.” (Italics added.)
Because it does not appear that defendant received either the notice of the hearing required under section 987.8 or the hearing, the matter is remanded to the trial court with instructions to hold a noticed hearing to determine defendant’s ability to pay attorney fees pursuant to section 987.8. (See People v. Flores (2003) 30 Cal.4th 1059, 1068-1069 [appellate court has authority to remand to order trial court to give defendant notice and a hearing under section 987.8, subdivision (b)].)

DISPOSITION
The trial court’s order vacating the dismissal orders as to counts 4 and 5 is affirmed. The unauthorized One Strike sentence on count 6 is reversed and the order imposing attorney fees is also reversed. The matter is remanded to the trial court with instructions to resentence defendant, reconsidering all sentencing choices,^[7] and to hold a noticed hearing on defendant’s ability to pay attorney fees pursuant to section 987.8. In all other respects, the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION


MOSK, J.

We concur:



ARMSTRONG, Acting P. J.



KRIEGLER, J.
Publication courtesy of California free legal advice.
Analysis and review provided by Carlsbad Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com

---