NOT TO BE PUBLISHED IN OFFICIAL REPORTS
O'LEARY, P. J.
The Orange County District Attorney (OCDA) appeals from the trial court's order granting Jesse Jay Gerondale's petition for writ of habeas corpus. The OCDA argues the following: the court erred by granting the habeas petition without first issuing an order to show cause (OSC); Gerondale was not in custody on his prior conviction; and Proposition 47 did not apply to the prior prison term.
In 2011, Gerondale pleaded guilty to possession for sale of a designated controlled substance (Health & Saf. Code, § 11375, subd. (b)(1)) (count 1), and admitted he suffered two prior prison terms (Pen. Code, § 667.5, subd. (b), all further statutory references are to the Penal Code). As relevant here, one of the prior prison terms was for grand theft (§ 487), in Orange County Superior Court (OCSC) case No. 08WF1186 (the prior felony conviction). At the sentencing hearing, the trial court imposed and suspended sentence and placed Gerondale on three years formal probation. In June 2014, the trial court terminated Gerondale's probation and sentenced him to five years in prison as follows: three years on count 1 and two one-year terms for the two prior prison terms.
In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47), which made certain drug- and theft-related offenses misdemeanors, unless the defendant was ineligible (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089; § 1170.18).
Gerondale filed a Proposition 47 application. In March 2015, the prior felony conviction was designated a misdemeanor. On July 9, 2015, Gerondale filed a petition for writ of habeas corpus. The petition was a one-page form "For Proposition 47 Resentencing Only."
On the afternoon of July 13, 2015, there was a hearing before Judge Gassia Apkarian in a related case, People v. Campbell (Super. Ct. Orange County, 2012, No. 12WF0369).
DDA Nicholson opposed granting the habeas petition. Nicholson stated she similarly objected to granting the habeas petition at a hearing before Judge Kazuharu Makino earlier that morning.
Judge Apkarian explained the process by which the OCSC and counsel developed the expedited habeas procedure for Proposition 47 cases. She said the following: "Just to sum up, two months ago there was a meeting, about two months ago there was a meeting where the representatives of the Public Defender's office, the [OCDA's] office, the Alternate Public Defender's office, court staff, and three judges were present. The discussion was to come up with a method in order to have these habeas, these petitions, for writ of habeas corpus heard expeditiously. . . . [¶] . . . [¶] At the time of the meeting, objections were not made by the [OCDA]. Subsequently when Judge [Jonathan] Fish was circulating e-mails and samples for these forms, the [OCDA's] office was privy to all of these e-mails, so was I, there were no objections made in writing, telephonically, orally, verbally, we have never heard of any objections until today, when Judge Makino informed me that in fact the [OCDA] [was] now objecting to the entire petition."
DDA Nicholson replied as follows: "Well, the [OCDA] are objecting to the substantive — we are objecting and opposing it, and Judge Makino informed me if we are objecting substantially, we are objecting to the vehicle that moves us into court." When Judge Apkarian asked whether the OCDA was objecting on both substantive and procedural grounds, Nicholson responded, "Yes." Judge Apkarian added, "So technically you are not opposed to the vehicle, you are opposed to the substance behind the vehicle." Nicholson said, "Yes."
To clarify the record, APD Brown asserted everyone agreed to the expedited habeas procedure because "there was no objection to the ultimate answer" and the only issue was "how do we get there." Brown added that although the OCDA certainly had the right to change its position on the substantive law, two months earlier the OCDA agreed to the expedited habeas procedure.
DDA Nicholson stated the following: "And once again the record will be clear we did not technically agree to the procedure, we didn't oppose it, we didn't agree to it, it was a vehicle for these cases to come before the judge who is handling [Proposition] 47, and allow us an opportunity to be heard."
When Judge Apkarian stated the OCDA was "holding" its objection until one of the habeas petitions was filed and now the OCDA had changed its position on the substantive law, DDA Nicholson replied as follows: "I don't think that's accurate, your honor, with all due respect. I don't think there was actually truly a position that was taken. It was there was a discussion of how these cases would come before the court, and at that time we would then make our position heard at that time." Judge Apkarian continued the matter one week to allow the OCDA to file an informal response.
On July 22, 2015, the OCDA filed "opposition" to Gerondale's habeas petition. The next day, there was a hearing before Judge Makino. DDA David R. Gallivan, DDA Nicholson, APD Brown, and Gerondale's counsel, David H. Rim appeared.
APD Brown stated there was one in-person meeting where Judge Fish, Judge Apkarian, Judge Douglas J. Hatchimonji, OCSC clerks, OCDA representatives, Alternate Defender Derek Bercher, and Brown were present. He stated the judges agreed these defendants were entitled to relief and although he did not remember whether the OCDA representatives agreed, they certainly did not object. He said Judge Hatchimonji suggested "some sort of a habeas petition" and people focused on developing an expedited procedure.
APD Brown stated "there was approximately a two-month process" where Judge Fish, doing "the lion's share of the work" worked with the OCSC rules committee and developed an expedited habeas procedure. Brown stated that at some point Judge Fish sent an e-mail to the group apologizing for the delay but said he wanted to develop an expedited habeas procedure for all similarly situated defendants to use regardless of who represented them. Brown said that based on a form habeas petition he provided to the court, Judge Fish drafted and circulated by e-mail a form expedited petition for writ of habeas corpus and no one objected. Brown added that because no one objected, Judge Fish sent an e-mail stating, "we are now a go" and posted the form habeas petition and rules on the OCSC website.
APD Brown stated he drafted a proposed order and distributed it to the group by e-mail and no one objected. He added the rules required defendants to give 10-days' notice, but the OCDA did not object to the procedure until the matter was set on calendar.
DDA Nicholson responded as follows: "I was present at my first and only meeting where this was brought up by the defense. I never engaged in those discussions. I didn't agree, I didn't oppose. I absorbed the information. I waited to have a day in court to litigate this matter and to bring a representative from my office from law and motion to address it. [¶] There were several e-mails that went back and forth. I never expressly agreed; I also didn't oppose. It was my impression that I would be allowed an opportunity to discuss and object appropriately when this was actually brought before the court in this department. [¶] And if it was a misunderstanding that we were waiving, then that's a misunderstanding. But there's nothing that I have ever said that, yes, I agree to this. And I never said that in the meeting, and I never said it in an e[-]mail."
When Judge Makino attempted to clarify whether her position was she was waiting until the court hearing to raise objections to the expedited habeas procedure, DDA Nicholson replied the following: "If we had any, yes. I was going to address that with my law [and] motion department." Judge Makino asked whether she said that to anyone, and Nicholson answered as follows: "No. We were going to do that when it came to court and address at that time with my law [and] motion person present on the record in court to address any concerns we had on merit or procedure. I never waived or agreed to it at any point."
Judge Makino asked DDA Nicholson whether she was aware the group was creating a habeas petition and expedited process, she agreed she saw the e-mails and the documents. When he said she did not answer the question, Nicholson replied as follows: "There was a procedure that they were discussing with the court on how they're going to get these cases in before a judge in this courtroom doing [Proposition] 47. I saw those petitions. I never agreed to it; I never opposed it." When asked, she repeated she was going to let someone from the law and motion department raise any objections in court.
When Judge Makino asked DDA Gallivan whether "there [was] an objection to the form used to bring this petition for writ of habeas corpus" the following colloquy occurred:
There was a discussion about incorporating by reference the points and authorities from the lead case, People v. Campbell (Super. Ct. Orange County, 2012, No. 12WF0369), to this case. DDA Gallivan objected "because we're still objecting on procedural grounds before we get to the substantive." After Gerondale's defense counsel indicated he wanted to file a new writ, and Judge Makino said that would trigger the 10-day rule, Gallivan inquired where the 10-day rule was posted. APD Brown replied, "It was in an e[-]mail sent to . . . [DDA] Nicholson." Nicholson said, "And it wasn't agreed to or opposed either." After brief argument, Gallivan withdrew his objection and stipulated to the proposed incorporation by reference.
Judge Makino ruled Gerondale and others were entitled to relief because under Proposition 47 any felony conviction that is designated as a misdemeanor is "a misdemeanor for all purposes," although it was "a very close call." DDA Gallivan objected Judge Makino did not address the OCDA's procedural objection, and Judge Makino stated defendants said they were willing to risk reversal on appeal. After Gallivan stated there were other issues that could have been briefed had the trial court issued an OSC, Judge Makino disagreed opining the one legal issue was clear. Gallivan stated he would have preferred to present his argument in a return after issuance of an OSC. Judge Makino replied, "That would probably be true had this whole procedure not been agreed to because in my view, the whole procedure basically excluded an OSC." When Gallivan asked whether Judge Makino was finding the OCDA agreed to the expedited habeas procedure, Judge Makino responded, "You waived any defects —." Gallivan said, "No, we didn't."
Judge Makino explained the OCDA waived any defects regarding "using the form" and it would have to argue before the appellate court whether that included waiving any defects to the OSC requirement. DDA Gallivan stated that although he initially did not object to the habeas form, he did ultimately object to it and he wanted his objection to be clear. Judge Makino said he would have to review the record. Gallivan contended he wanted it to be clear he objected to the habeas form and the expedited process. He asserted Judge Makino was required to rule on the procedural argument and he could not rule on the substantive argument "because the [OCDA has] never been ordered to show cause."
After DDA Gallivan disputed the OCDA waived any objection concerning the expedited habeas procedure, the following colloquy occurred:
After a short discussion regarding the appropriate order, DDA Gallivan contended the appropriate remedy was resentencing and not a reduction. Judge Makino disagreed, explaining he was ruling on a habeas petition and not a Proposition 47 petition. When Gallivan continued to object, Judge Makino said he could also take that up with the Court of Appeal.
In a written order the same day, the trial court granted Gerondale's habeas petition, vacating the one-year sentences on Gerondale's two prior felony convictions. The court ordered his recalculated sentence was four years.
At a hearing in a related case on August 3, 2015, DDA Dominic Bello voiced his numerous objections to the expedited habeas procedure, including that Judge Makino could grant relief without issuing an OSC. Before he granted the petition, Judge Makino stated, "Well, the procedural aspects, as before in the other writs, I consider them waived." (Italics added.)
The OCDA argues the trial court erred by granting relief without first issuing an OSC. Thompson contends the court did not err for the following reasons: the OCDA waived the right to file a return because it did not object to the expedited habeas procedure; and the OCDA had a meaningful opportunity to litigate the pure question of law. For the reasons stated in People v. Campbell (May 15, 2017, G052575) ___ Cal.App.5th ___, we agree with the OCDA that the court erred without first issuing an OSC. We reverse and remand the matter.
The order is reversed and the matter is remanded.
MOORE, J. and IKOLA, J., concurs.