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In re Campbell

California Court of Appeals, Fourth District, Third Division

May 15, 2017

In re DONTA LAMONT CAMPBELL on Habeas Corpus.

         Appeal from an order of the Superior Court of Orange County, No. 12WF0369 Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.

          Tony Rackauckas, District Attorney, David R. Gallivan, Deputy District Attorney, for Plaintiff and Appellant.

          Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Respondent.


          O'LEARY, P. J.

         The Orange County District Attorney (OCDA) appeals from the trial court's order granting Donta Lamont Campbell'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); Campbell was not in custody on his prior convictions; and Proposition 47 did not apply to prior prison terms.[1] Because we agree the trial court erred by granting relief without first issuing an OSC, we need not address the OCDA's other contentions. We reverse the court's order granting Campbell's petition for writ of habeas corpus.


         In September 2012, a jury in Orange County Superior Court (OCSC) case No. 12WF0369 convicted Campbell of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), five counts of transportation of controlled substances (Health & Saf. Code, § 11352, subd. (a)), and misdemeanor possession of a controlled substance without a prescription (Bus. & Prof. Code, § 4060). Later, Campbell admitted he suffered seven prior prison terms (Pen. Code, § 667.5, subd. (b)), including as relevant here the following six OCSC cases that were for violating Health and Safety Code section 11390, subdivision (a): 00CF1529; 01CF2618; 03CF3299; 05HF2234; 08CF2020; and 09CF2914 (collectively referred to as the six prior felony convictions).

         In November 2012, the trial court sentenced Campbell to 11 years in jail as follows: four years on count 4 and seven consecutive one-year terms for the prior prison term allegations. The sentences on the remaining counts were concurrent or stayed terms. This court affirmed his convictions. (People v. Campbell (May 27, 2014, G047708) [nonpub. opn.].)

         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; Pen. Code, § 1170.18). Campbell filed a Proposition 47 application. In April 2015, Campbell's six prior felony convictions were designated misdemeanors.

         In June 2015, Campbell filed a petition for resentencing pursuant to Penal Code section 1170.18, subdivision (a), because his current sentence included six one-year terms for convictions that were no longer felonies. Later that month, Campbell filed a petition for writ of habeas corpus. The petition was a one-page form titled, “For Proposition 47 Resentencing Only.”

         On the afternoon of July 13, 2015, there was a hearing before Judge Gassia Apkarian. Deputy district attorney (DDA) Nicole Nicholson and Assistant Public Defender (APD) Mark Brown appeared. When Judge Apkarian asked Brown to explain the purpose of the hearing, Brown stated it was “a fairly long process.” He explained “we” had meetings, in person and by e-mail, with the OCSC to develop an expedited habeas procedure to grant relief to Campbell and others under Proposition 47. Brown stated the OCDA did not object to the expedited habeas procedure during any of those meetings. He added the OCSC revised its rules and drafted its own habeas petition, which it posted on its website. Brown said that while talking to DDA Nicholson off the record, he was then aware the OCDA was opposed to Campbell's habeas petition both substantively and procedurally. Brown stated that had he known the OCDA was opposed to the expedited habeas procedure, he would not have waited two months while the OCSC developed it. Brown stated he would have filed “a regular habeas petition” and Campbell would not have unnecessarily spent two months in custody. Brown requested Judge Apkarian grant Campbell's habeas petition.

         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.[2] She stated the following: “There [was] no express acceptance of these petitions. We were present at a meeting, we received e-mails, we had our law and motion department working on those, we are opposed to this.” She asked for one week to file a response.

         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.

         Three days later, the OCDA filed an informal response. Four days later, Campbell filed points and authorities in support of his habeas petition.

         On July 23, 2015, there was a hearing before Judge Makino. DDA David R. Gallivan, DDA Nicholson, and APD Brown appeared.[3] After Brown stated the OCSC created and published an expedited habeas procedure for Proposition 47 cases, Judge Makino stated it was his understanding the “procedure was agreed to” but it now appeared the OCDA objected and the issue before him was whether there was an agreement or whether the OCDA's objection was waived. After Judge Makino said he was not involved in adopting the expedited habeas procedure and did not know whether “they were court-ordered procedures, ” Brown provided a detailed history of how the procedure developed.

         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:

         “[DDA Gallivan]: No, not to the form. We did have an off-the-record discussion prior to this. I think based on the meetings, I think the way it's been brought before the court, we do not object to the form of it. [¶] But we're asking the court --... Brown cited that new rules were promulgated as to how that form would then be litigated. I haven't seen those rules. I went on the judicial website or the [OCSC] website. Those rules are not online. I don't know where those new rules are, how we litigate these habeas petitions. And the form that the Public Defender is using is not the form that's on the website that was approved by the [OCSC].

         “[Judge Makino]: I didn't even know there was a form on the website. So I don't know what the difference is between the forms. [¶] Do you have an objection to the forms that are being used by the Public Defender in these writs that are pending right now?

         “[DDA Gallivan]: At this time, no. At any time. I'm not objecting to the form. My concern is the ...

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