California Court of Appeal Jan 11, 2024 No. E082057Unpublished
Filed 1/11/24 P. v. Roberts CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082057
v. (Super.Ct.No. RIF103844)
PAUL DEAN ROBERTS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Paul Dean Roberts, in pro. per.; and Brad J. Poore, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Paul Dean Roberts apparently filed a request pursuant to
Penal Code section 1172.751 to have his prior prison term enhancement stricken.2 The
court implicitly dismissed the request by taking the matter off calendar.
Counsel has filed a brief under the authority of People v. Delgadillo (2022) 14
Cal.5th 216 (Delgadillo), setting forth a statement of facts, a statement of the case, and
identifying three potentially arguable issues: (1) whether the court erred in determining
that defendant’s convictions for lewd and lascivious acts with a child under the age of 14
rendered him ineligible for relief as a matter of law; (2) whether the court erred in
determining it did not have jurisdiction to recall defendant’s sentence; and (3) whether the
trial court erred in holding the hearing without defendant’s personal presence.
Defendant was offered the opportunity to file a personal supplemental brief, which
he has done.3 Defendant contends his original convictions included findings that his
offenses were committed without force or violence and that he was never convicted of
sexual crimes committed in Riverside County. Therefore, defendant maintains the court
1 All further statutory references are to the Penal Code unless otherwise noted.
2 No letter, motion, request, or petition for such relief appears in the record. We infer defendant filed such a request from the court’s statements: “While there were a number of invitations for me to put these on calendar because defendants sent letters, I always denied them.” “I’ve seen several opinions and a couple of denials now from the Court of Appeals indicating I’m without jurisdiction to handle the petition because there is a statutory process for the orderly administration of the new statute. They have said the defendant does not have standing to make the petition.”
3 “If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.) 2
erred in finding him ineligible for relief without holding a hearing, with defendant
present, at which the court should have held the People to the burden to prove, beyond a
reasonable doubt, that defendant’s prior conviction offenses were sexually violent. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND4
Both defendant’s underlying cases arose from convictions that originated in
Orange County in 1984 and 1985, but were transferred to Riverside County during
defendant’s period of probation. In the first case, defendant pled guilty to eight counts
under sections 288, subdivision (a) (lewd or lascivious conduct upon a child under 14)
and 647a (child molesting). Defendant admitted he had committed lewd acts four times
against the first victim, two times against the second victim, and one time against the
third and fourth victims. (Roberts I, supra, E003648; Roberts II, supra, E042192.)
In the second case, defendant pled guilty to five counts of lewd and lascivious
conduct (§ 288, subd. (a)) upon a 12-year-old victim: “[D]efendant admitted the charges
in the following language: [¶] ‘I placed my penis in contact with his buttocks. I placed
his penis in my mouth on [two] separate occasions, I masturbated the penis of [the
victim] (age 12) and had [the victim] masturbate my penis all acts done with and for the
purpose of my own sexual gratification.’” (Roberts I, supra, E003648.) The court placed
4 We take judicial notice of this court’s prior opinions from defendant’s appeal from the revocation of his probation (People v. Roberts (Oct. 3, 1988, E003648) [nonpub. opn.] (Roberts I)), and his appeal from his judgment for failure to register as a sex offender (People v. Roberts (June 9, 2008, E042192) [nonpub. opn.] (Roberts II)). (Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).) 3
defendant on probation with a suspended sentence and required that he register as a sex
offender. (Roberts II, supra, E042192.)
In 1986, while on probation, defendant forced an eight-year-old boy to orally
copulate him. The trial court revoked defendant’s probation on October 1, 1986.5 The
court sentenced defendant to 15 years in the first case and 10 consecutive years in the
second. (Roberts I, supra, E003648; Roberts II, supra, E042192.)
Defendant appealed. This court affirmed the judgment. (Roberts I, supra,
E003648.) After he completed a portion of his 25-year sentence, defendant was released
from prison. (Roberts II, supra, E042192.)
As a sex offender, defendant was required to notify law enforcement of his
residence or location in California. Defendant had repeatedly requested permission to
leave California; his parole agent told him he could not do so. Defendant was to report to
his parole agent on October 15, 2001, but failed to show. That day, defendant’s parole
agent checked defendant’s motel and was informed defendant had left. (Roberts II,
supra, E042192.)
By Christmas 2001, defendant had moved in with a woman and her 10-year-old
son, in Montana. California law enforcement located defendant in Montana shortly
before they arrested him in March 2005. (Roberts II, supra, E042192.)
5 We note that Roberts I reflects that the court revoked defendant’s probation on October 1, 1986, while Roberts II reflects the court revoked defendant’s parole on October 21, 1986. (Roberts I, supra, E003648; Roberts II, supra, E042192.) The discrepancy is of no relevance in the instant case.
4
A jury convicted defendant of failing to notify law enforcement he had changed
his residence or location (§ 290, subd. (f)(1), count 1) and failing to register his new
address within five working days of moving on or about October 16, 2001 (§ 290,
subd. (a)(1)(A); count 2). The court thereafter found true allegations defendant had
(c)(2)(A)) and one prior prison term (§ 667.5, subd. (b)). The court sentenced defendant
to a total term of 26 years to life in state prison consisting of a term of 25 years to life on
count 1, plus a consecutive one-year for the prison prior. The court also imposed a term
of 25 years to life on count 2 but stayed the sentence under section 654. (Roberts II,
supra, E042192.)
Defendant appealed. This court reversed the judgment as to the count 2 offense.
In all other respects, this court affirmed the judgment. (Roberts II, supra, E042192.) On
November 6, 2008, the court dismissed the count 2 offense.
At a hearing on July 31, 2023, at which defendant was represented but not present,
the court observed: “While there were a number of invitations for me to put these on
calendar because defendants sent letters, I always denied them. I always sent a copy of
that, of the letter, to both the prosecutor and to a member of the public defender’s office.
But I’ve seen several opinions and a couple of denials now from the Court of Appeals
indicating I’m without jurisdiction to handle the petition because there is a statutory
process for the orderly administration of the new statute. They have said the defendant
5
does not have standing to make the petition.” “All right. Then that being the case, this
one is off calendar.”
Nevertheless, the court noted that defendant’s prior prison term “purports to be a
violation of . . . section 288, subdivision (a), which does survive the change in the law as
it relates to prison priors. So it would appear that the gentleman is not entitled to relief.”
II. DISCUSSION
Defendant contends his original conviction included a finding that his offenses
were committed without force or violence and that he was never convicted of sexual
crimes committed in Riverside County. Therefore, defendant maintains the court erred in
finding him ineligible for relief. He argues the court should have held a hearing, with
defendant present, at which the court should have held the People to the burden to prove,
beyond a reasonable doubt, that defendant’s prior conviction offenses were sexually
violent. We affirm.
“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to
impose a one-year sentence enhancement for each true finding on an allegation the
defendant had served a separate prior prison term and had not remained free of custody
for at least five years. [Citation.] Effective January 1, 2020, Senate Bill No. 136 (2019-
2020 Reg. Sess.) (Stats. 2019, ch. 590) (Senate Bill 136) amended section 667.5 by
limiting the prior prison term enhancement to only prior terms for sexually violent
offenses. [Citations.] Enhancements based on prior prison terms served for other
offenses became legally invalid. [Citation.] The amendment was to be applied
6
retroactively to all cases not yet final on January 1, 2020. [Citation.]” (People v. Burgess
(2022) 86 Cal.App.5th 375, 379-380 (Burgess).)
A “‘[s]exually violent offense’ means the [] acts when committed by force,
violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or
another person, or threatening to retaliate in the future against the victim or any other
person, . . . and result[ing] in a [felony] conviction . . . of Section . . . 288 . . .” (Welf. &
Inst. Code, § 6600, subd. (b).)
“Later, in 2021, the Legislature enacted Senate Bill No. 483 (2021-2022 Reg.
Sess.) (Senate Bill 483). This bill sought to make the changes implemented by Senate
Bill 136 retroactive. [Citation.] It took effect on January 1, 2022, and added former
section 1171.1, now section 1172.75, to the Penal Code. (Stats. 2021, ch. 728, § 3; Stats.
2022, ch. 58, § 12.)” (Burgess, supra, 86 Cal.App.5th at p. 380.)
“Section 1172.75 states that ‘[a]ny sentence enhancement that was imposed prior
to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense . . . is legally
invalid.’ (§ 1172.75, subd. (a).) The statute further establishes a mechanism to provide
affected defendants a remedy for those legally invalid enhancements. Subdivision (b) of
section 1172.75 directs the Secretary of the Department of Corrections and Rehabilitation
(CDCR) and the correctional administrator of each county to ‘identify those persons in
their custody currently serving a term for a judgment that includes an enhancement
described in subdivision (a) and . . . provide the name of each person, along with the
7
person’s date of birth and the relevant case number or docket number, to the sentencing
court that imposed the enhancement.’ [Citation.]” (Burgess, supra, 86 Cal.App.5th at
p. 380.)
“[S]ection 1172.75 does not authorize a defendant to seek resentencing on his or
her own motion or petition. Rather the process is triggered by the [CDCR] identifying a
defendant as a person serving a sentence that includes a prior prison term enhancement.
[Citation.]” (People v. Cota (2023) 97 Cal.App.5th 318, 332.)
Regardless of whether any or all of defendant’s 13 convictions for lewd and
lascivious behavior with minors under section 288, subdivision (a), would qualify as
sexually violent, the court was without jurisdiction to rule on the matter because
defendant brought the request for relief himself. Only the filing of documentation by the
CDCR would trigger the court’s jurisdiction to strike defendant’s prior prison term
enhancement. (Cota, supra, 97 Cal.App.5th at p. 332; Burgess, supra, 86 Cal.App.5th at
p. 380.) Thus, the court correctly dismissed defendant’s request for relief for lack of
jurisdiction.
8
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
FIELDS J.
9
AI Brief
AI-generated · verify before citing
Holding. The court held that it lacked jurisdiction to consider the defendant's request to strike a prior prison term enhancement because the statutory process under Penal Code section 1172.75 must be initiated by the Department of Corrections and Rehabilitation, not by a defendant's own motion.
Issues
Whether the trial court erred in determining the defendant was ineligible for relief as a matter of law.
Whether the trial court erred in determining it lacked jurisdiction to recall the defendant's sentence.
Whether the trial court erred in holding the hearing without the defendant's personal presence.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the court was without jurisdiction to rule on the matter because defendant brought the request for relief himself.”
“the court correctly dismissed defendant’s request for relief for lack of jurisdiction.”