Filed 6/18/21 P. v. Overstreet CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077761
Plaintiff and Respondent,
(Super. Ct. No. VCF355373)
v.
THERON EVERS OVERSTREET, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
John L. Staley, 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, Catherine Chatman and R. Todd
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Theron Evers Overstreet appeals from the judgment following a jury
trial in Tulare County Superior Court case No. VCF355373 (case 5373). On the day of
his sentencing, the court also imposed a sentence for a probation violation in case
No. VCF331697 (case 1697), which included a three-year prison term and the court
reimposing a restitution fine and court assessments originally imposed at the time
appellant was granted probation. Appellant’s sole issue on appeal is that the imposition
of the restitution fine and court assessments in case 1697 violated his due process and
equal protection rights because the court made no finding of his ability to pay them.
Because appellant’s notice of appeal only indicated case 5373, in which no fines or fees
were imposed, we find appellant has not timely appealed the judgment in case 1697 and
we therefore do not have jurisdiction to consider the appeal. We dismiss the appeal.
PROCEDURAL BACKGROUND
Case 1697 Relevant Procedural Facts
On May 2, 2016, in case 1697, appellant pled no contest to felony robbery (Pen.
Code, § 211),1 as part of a plea agreement in which he would be granted probation.
During his plea, appellant acknowledged in open court he understood the offense was
punishable by up to five years in state prison, and if he violated probation, he could be
returned to custody for up to five years. He further acknowledged the minimum
restitution fine for the offense was $300 and the maximum was $10,000. Appellant was
sentenced on May 24, 2016; probation was granted for a period of three years, and
appellant was ordered to serve 365 days in jail with credit for 176 days, and to pay a
restitution fine in the amount of $500 at $50 per month commencing 30 days after release
from custody. The court also ordered and suspended a $500 probation revocation fine.
Appellant was further ordered to pay a total of $2,600 to the victims of his crime.
Finally, he was ordered to pay a $10 additional fine (§ 1202.5), a $40 court operations
1 All further undesignated statutory references are to the Penal Code.
2.
assessment, a $30 criminal conviction assessment, and $250 for the cost of the
presentence investigation report “according to his ability to pay.”
Case 5373/Case 1697 Violation of Probation
Case 5373 stemmed from an incident that occurred in August 2017 where
appellant passed a jogger while riding a bicycle, made a U-turn to follow her with his
erect penis in his hand, unmounted his bicycle, and grabbed her. Appellant let go after
the jogger called her fiancé for help. Appellant was charged with assault with intent to
commit rape (§ 220, subd. (a)(1); count 1), and indecent exposure (§ 314, subd. (1);
count 2). A jury trial was held, and on May 25, 2018, the jury returned guilty verdicts for
the lesser included offense of simple assault (§ 240) on count 1 and indecent exposure
(§ 314, subd. (1)), and not guilty verdicts for assault with attempt to commit rape and the
lesser included offense on count 1 of attempted rape (§§ 664/261).
On the afternoon the jury returned the verdict, the court made a finding appellant
was in violation of probation in case 1697 based upon the jury’s conviction.
Appellant was sentenced on both the probation violation in case 1697 and
case 5373 on June 25, 2018. As for case 1697, the court terminated appellant’s
previously imposed probation and sentenced him to three years in prison. The court
ordered appellant to pay “the original restitution fine of $500, minus any payments,” the
probation revocation fine of $500, and a parole revocation fine of $500, which was
suspended pending successful completion of parole. The court ordered a $10 fine
pursuant to section 1202.5, a $40 court operations assessment (§ 1465.8), and a
$30 criminal conviction assessment (Gov. Code, § 70373).
For case 5373, the court ordered appellant to serve 180 days in custody with credit
for time served.
Appellant’s trial counsel filed a notice of appeal on July 5, 2018, listing only
case 5373.
3.
Relevant Procedural Facts While Appeal Was Pending
The record on appeal—consisting of the clerk’s transcript and reporter’s transcript
from case 5373—was filed on October 15, 2018. On the same day, appellant filed a
motion to augment the record to include the reporter’s transcript of jury voir dire, which
appellant asserted was relevant to an appellate issue regarding a potentially erroneous
denial of a defense challenge to one of the jurors. This court granted appellant’s motion
to augment the record on November 20, 2018.
On January 24, 2019, appellant filed his opening brief raising a sole issue
regarding an alleged violation of his constitutional rights by the imposition of fines and
fees based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
On February 11, 2019, appellant filed a motion for stay of the proceedings because
he had filed a motion in the trial court to strike the fines and fees at issue in the appeal.
According to appellant, this was done in “an abundance of caution” to satisfy
section 1237.2, which requires appellants to first seek relief in the trial court when the
sole issue to be raised in the opening brief is error regarding the imposition of fines and
fees. A copy of the motion appellant filed in the trial court, entitled “Motion to Strike the
Fines and Fees Based on Federal Constitutional Grounds,” was served on this court on
February 13, 2019. The motion was prepared by appellant’s appellate counsel and raised
the same legal issue raised in appellant’s opening brief. Counsel listed the case number
for case 5373 on the written motion.
This court granted appellant’s motion for a stay on March 1, 2019. On March 6,
2019, this court received a minute order with only the case number for case 1697, dated
February 26, 2019, indicating appellant’s motion had been denied and that the fines and
fees in case 1697 remained imposed.
On March 6, 2019, appellant filed a motion to augment the record on appeal to
include the February 26, 2019 minute order and to vacate the stay of appellate
proceedings.
4.
On March 8, 2019, this court lifted the stay of the proceedings and denied
appellant’s motion to augment the record because “[t]he document appellant seeks to
include in the record was never filed or lodged in this case with the superior court.”
On March 12, 2019, appellant made a second motion to augment the record to
include the February 26, 2019 minute order indicating the court denied appellant’s
motion to strike the fines and fees and the reporter’s transcript from that hearing. On
April 5, 2019, this court granted appellant’s motion and directed the trial court to prepare
and transmit the documents to this court.
On April 16, 2019, the superior court appeals clerk filed a declaration with this
court indicating she was unable to locate any hearing in case 5373 held on February 26,
2019, and the last hearing in that case was June 25, 2018. That day, this court sent a
letter to appellant indicating the “augmented record on appeal/affidavit” had been filed.
On May 7, 2019, respondent filed its brief, raising several procedural bars to our
consideration of the appeal on its merits, including appellant’s failure to list case 1697 on
the notice of appeal and consequential untimeliness and failure to perfect the record on
appeal. Respondent contended we must dismiss the appeal.
On May 21, 2019, appellant filed a motion to construe the notice of appeal to
include case 1697 and to extend the due date for his reply brief. On June 10, 2019,
respondent filed an opposition to appellant’s motion. On June 18, 2019, this court
deferred ruling on the motion pending consideration of the appeal on its merits.
On June 20, 2019, appellant filed a motion to augment the record to include
minute orders in case 1697, dated May 2, 2016 and May 24, 2016, and the corresponding
reporter’s transcripts. On July 12, 2019, respondent filed an opposition. On
September 17, 2019, this court granted appellant’s motion and directed the trial court to
prepare and transmit the documents, and the augmented record was filed in this case on
October 21, 2019.
5.
On November 5, 2019, appellant filed a third motion to augment the record to
include a copy of the minute order in case 1697, dated February 26, 2019, and the
corresponding reporter’s transcript. On November 18, 2019, respondent opposed the
motion. On December 20, 2019, this court denied appellant’s motion because he had
“failed to demonstrate the requested materials were filed or lodged in the above entitled
case.” The order indicated appellant’s reply brief, which had been stayed due to
appellant’s motions, was due to be filed within 20 days of the date of the order.
Appellant did not file a reply brief, and the case was deemed fully briefed on
January 13, 2020.
On March 13, 2020, appellant filed a request for judicial notice of the February 26,
2019 minute order from case 1697. On April 1, 2020, this court issued an order deferring
ruling on appellant’s request pending consideration of the appeal on its merits.
Respondent did not file a response to appellant’s request.
DISCUSSION
Appellant’s sole argument on appeal is that the trial court violated appellant’s
constitutional rights by imposing fines and fees without determining appellant had the
ability to pay them, relying on Dueñas, supra, 30 Cal.App.5th 1157. The fines and fees
appellant challenges were imposed as part of the court’s granting of probation and
subsequent revocation of probation in case 1697, and appellant’s notice of appeal only
listed case 5373. Respondent contends appellant’s failure to list case 1697 requires us to
dismiss the appeal, and, in response to respondent’s contentions, appellant has
subsequently moved this court to construe the notice of appeal to include case 1697.
Before reaching any other contentions, we address appellant’s motion to construe, and for
reasons we explain, hereby deny it. We therefore conclude appellant has not filed a
timely notice of appeal in case 1697; accordingly, we have no jurisdiction over this
appeal and must dismiss it.
6.
“The notice of appeal must be liberally construed” and must be considered
“sufficient if it identifies the particular judgment or order being appealed.” (Cal. Rules of
Court,2 rule 8.304(a)(4).) In criminal cases, where an appeal is taken after a guilty or no
contest plea or admission of probation violation, the appellant must also obtain a
certificate of probable cause from the trial court, except where the notice of appeal
includes a statement that the appeal is based on either the denial of a motion to suppress
or grounds that arose after the entry of the plea that do not affect the plea’s validity.
(Rule 8.304(b).)
“The policy of liberally construing a notice of appeal in favor of its sufficiency
[citation] does not apply if the notice is so specific it cannot be read as reaching a
judgment or order not mentioned at all.” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th
154, 173.) “[I]t is well ‘beyond liberal construction’ to view an appeal from one order as
an appeal from a ‘further and different order.’ [Citation.] ‘Despite the rule favoring
liberal interpretation of notices of appeal, a notice of appeal will not be considered
adequate if it completely omits any reference to the judgment being appealed.’
[Citation.] ‘The rule favoring appealability in cases of ambiguity cannot apply where
there is a clear intention to appeal from only … one of two separate appealable judgments
or orders.’ ” (Baker v. Castaldi (2015) 235 Cal.App.4th 218, 225‒226.) When a notice
of appeal manifests a “ ‘clear and unmistakable’ ” intent to appeal only from one order,
we cannot liberally construe the notice to apply to a different, omitted order. (Unilogic,
Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625, quoting Glassco v. El Sereno
Country Club, Inc. (1932) 217 Cal. 90, 91‒92; accord, Ellis v. Ellis (2015) 235
Cal.App.4th 837, 846 [declining to liberally construe notice of appeal to include
corrected judgment “where every indication in the record” showed the appellant only
intended to appeal from original judgment].)
2 All further undesignated rule references are to the California Rules of Court.
7.
Applying these principles, we conclude we cannot construe appellant’s notice of
appeal to include case 1697. Though the judgments were pronounced on the same day,
they were for separate cases with separate case numbers. Appellant completely omitted
the case number for the case which included the asserted error on appeal, and therefore
did not identify the judgment he now states he wishes to appeal from. We conclude this
fact alone precludes us from construing the notice of appeal to include case 1697. Even
if we did not find this fact to be dispositive, appellant’s argument still fails.
We may liberally construe a notice of appeal to protect the right of appeal when
“ ‘[1] it is reasonably clear what [the] appellant was trying to appeal from, and [2] where
the respondent could not possibly have been misled or prejudiced.’ ” (Critzer v. Enos
(2010) 187 Cal.App.4th 1242, 1249, quoting Luz v. Lopes (1960) 55 Cal.2d 54, 59.)
Appellant contends the intent to appeal from the judgment in case 1697 was clear
from the following facts: (1) the sentencing memorandum referred to both cases; (2) the
trial court sentenced appellant on both cases on the same date; and (3) the notice of
appeal was filed following that date.
We are not persuaded these facts make it reasonably clear that appellant intended
to appeal from the judgment in case 1697. Rather, we conclude the notice of appeal
demonstrated an intent to appeal only from the judgment in case 5373. First, at risk of
belaboring the point, we mention again that where the notice of appeal is required to list a
case number, only case 5373 is listed.
In addition, the fines and fees appellant challenges on appeal were initially ordered
at the time appellant was granted probation following his plea, yet the notice of appeal
did not indicate the appeal was one following an entry of a guilty or no contest plea,
appellant sought no certificate of probable cause, and the notice of appeal included no
statement asserting a certificate of probable cause was not necessary. Rather, the notice
of appeal expressly indicated the appeal was one following a jury or court trial under
section 1237.
8.
Further, in the notice of appeal packet the superior court clerk transmitted to this
court, the clerk only included documents related to the judgment in case 5373: the
June 25, 2018 minute order for the sentencing hearing—which only related to the
sentence in case 5373—and the May 25, 2018 minute order of the jury’s verdict. None of
these documents refer to the imposition of any fines or fees. Neither the abstract of
judgment for case 1697 nor any document that indicated any fines or fees were ordered
was included in this packet. This packet was served on appellant’s trial attorney’s office
by mail on July 6, 2018. Had the intent been to appeal the order imposing fines and fees
or any order in case 1697, appellant would have had the opportunity at that time to file a
timely notice of appeal in case 1697, so that the proper documents could be transmitted to
this court and the parties.
Finally, appellant filed a successful motion to augment the record to include jury
voir dire documents from case 5373, indicating there was a potential issue on appeal
relating to jury selection, further demonstrating the judgment in case 5373 was the
intended appealable order. We also note that the legal basis of appellant’s sole issue on
appeal, the appellate court’s decision in Dueñas, supra, 30 Cal.App.5th 1157, was not
published until over six months after the notice of appeal was filed. This also supports an
inference it is not reasonably likely the intent in filing the notice of appeal was to appeal
the case 1697 judgment.
For these reasons, we cannot say, based on these facts, it was “reasonably clear”
from what judgment appellant was trying to appeal; rather, in our view, the notice of
appeal demonstrated a clear intent to pertain only to case 5373.
In addition, construction of appellant’s notice of appeal to include case 1697,
misleads and prejudices respondent. Because appellant only listed case 5373, the
superior court clerk appropriately prepared a record on appeal only for that case, which
incidentally included some proceedings relevant to case 1697—the court’s finding of a
violation of probation and the sentencing for the violation of probation. As the lengthy
9.
and confusing procedural history that resulted from the appropriate clerical action of
preparing the record for only case 5373 demonstrates, however, appellant’s notice of
appeal resulted in the omission of documents relevant to the appeal. Appellant
attempted, sometimes successfully and sometimes not, through various filings to get the
relevant documents to the parties and before this court. But by failing to put the proper
case number on the notice of appeal, appellant was in a position where, when his motions
were successful, he could pick and choose the documents included in the record on
appeal, and when he was not successful, was procedurally without a remedy to get the
relevant documents included in the record. This limited respondent’s ability to respond
to the merits of appellant’s case, and hypothetically shifted the burden to respondent to
prepare its own filings to ensure a complete record that would assist in its response to the
appeal, such as any documents appellant did not seek to make part of the record that
would indicate the issue had been forfeited or would be otherwise detrimental to his
appeal.
None of the authority appellant cites in support of his motion to construe persuade
us to come to a different conclusion. Appellant cites several cases he contends stand for
the general principles that appellate courts should avoid forfeiture of substantial rights on
technical grounds, that “[a]ll doubts should be resolved in favor of the right to appeal,”
and that we should liberally construe a notice of appeal “in favor of its sufficiency.”
None of the cases appellant cites to support these propositions are apposite or persuasive
to the present issue as they all specifically deal with interpretation of former rule 31(a).
Former rule 31(a) required notices of appeal to be filed within 10 days after rendition of
judgment but included a special procedure empowering appellate courts to grant relief
from default in pro per cases. (People v. Chapman (1971) 5 Cal.3d 218; People v. Acosta
(1969) 71 Cal.2d 683; People v. Casillas (1964) 61 Cal.2d 344; People v. Bailey (1969)
1 Cal.3d 180; People v. Diehl (1964) 62 Cal.2d 114; People v. Tucker (1964) 61 Cal.2d
828.) While the California Supreme Court routinely urged the remedy under rule 31(a) to
10.
be “ ‘liberally exercised to avoid loss of the right to appeal,’ ” this rule was revised in
1972, eliminating this special procedure and extending the period in which to file a notice
of appeal from 10 days to 60 days. (Silverbrand v. County of Los Angeles (2009) 46
Cal.4th 106, 116.) As such, the cases cited by appellant are focused on the interpretation
of an old and inapposite law and therefore are not persuasive and do not alter our
conclusion.
Today, the doctrine of constructive filing is the proper method to resolve an
untimely notice of appeal (Silverbrand v. County of Los Angeles, supra, 46 Cal.4th at
p. 116), which appellant also suggests applies to the present case. When a notice of
appeal is not actually filed within the 60-day period, an appeal is barred unless the notice
of appeal is deemed to have been constructively filed. (People v. Lyons (2009)
178 Cal.App.4th 1355, 1361.) To show the constructive filing doctrine should apply, as
relevant here, an incarcerated criminal appellant must show he “ ‘has made arrangements
with his attorney for the filing of a timely appeal and has displayed diligent but futile
efforts in seeking to insure that the attorney has carried out his responsibility.’ ” (In re
Chavez (2003) 30 Cal.4th 643, 657; People v. Lyons, at p. 1361.) This showing must be
made by a verified petition for a writ of habeas corpus (People v. Lyons, at p. 1362) or
noticed motion (People v. Zarazua (2009) 179 Cal.App.4th 1054, 1062‒1063). Because
appellant alleges no facts to support a finding of constructive filing for case 1697, we
conclude the doctrine does not apply.
For the foregoing reasons, we deny appellant’s motion to construe the notice of
appeal to include case 1697.
Accordingly, as the sole issue on appeal is the fines and fees imposed in
case 1697, and because appellant has not filed a notice of appeal as to that case, we
conclude we do not have jurisdiction and dismiss the appeal. (See People v. Lyons,
supra, 178 Cal.App.4th at p. 1361 [“ ‘Unless the notice [of appeal] is actually or
11.
constructively filed within the appropriate filing period, an appellate court is without
jurisdiction to determine the merits of the appeal and must dismiss the appeal.’ ”].)3
DISPOSITION
The appeal is dismissed.
DE SANTOS, J.
WE CONCUR:
HILL, P.J.
PEÑA, J.
3 Because the appeal is dismissed, appellant’s request for judicial notice filed on
March 13, 2020, is accordingly denied.
12.