Opinion
H051488
03-29-2024
THE PEOPLE, Plaintiff and Respondent, v. JIMMY LLOYD ALEXANDER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 17CR001822)
Before Greenwood, P. J., Bamattre-Manoukian, J., and Wilson, J.
Jimmy Lloyd Alexander appeals from an order denying his motion to dismiss or recall his sentence pursuant to alleged changes in the law. Counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Alexander subsequently filed a supplemental brief on his own behalf. For the reasons set forth below, we affirm the order.
I. Factual and Procedural Background
The underlying facts are not relevant to the issue raised on appeal.
In 2017, a jury found Alexander guilty of nine felony sex offenses and one count of robbery: kidnapping to commit an enumerated sex offense (Pen. Code, § 209, subd. (b)(1), count 1); forcible rape (§ 261, subd. (a)(2), counts 2 and 3); forcible sodomy (§ 286, subd. (c)(2)(A), counts 4 and 5); forcible oral copulation (§ 288a, subd. (c)(2)(A), counts 6 through 9); and second degree robbery (§ 212.5, subd. (c), count 10). The jury found true allegations that Alexander kidnapped the victim with substantial movement that increased her risk of harm (§ 667.61, subds. (d)(2), (e)(1)) and for sexual purposes (§ 667.8, subd. (a)). The jury did not find any deadly weapons allegations true. After a court trial, the trial court found that Alexander had a prior serious or violent juvenile adjudication, but later struck the enhancement in the interest of justice. The court sentenced Alexander to a total term of 175 years to life in state prison.
Subsequent undesignated statutory references are to the Penal Code.
In 2023, Alexander filed a motion to dismiss or recall his robbery conviction based on his contention that "robbery under [section 211] is no longer a 'crime' of 'violence' under 18 U.S.C. § 16 (United States v. Garcia-Lopez [(2018) 903 F.3d 887])." Alexander simultaneously filed a request for appointment of counsel. The trial court forwarded the requests to the public defender's office. The court thereafter denied both the request for appointment of counsel and the motion to dismiss or recall his sentence, noting, "Both were previously forwarded to the Monterey County Public Defender's Office for their review and further action if they deem it appropriate." Alexander timely appealed from the September 2023 order.
This court ordered counsel appointed to Alexander for this appeal. Counsel filed an opening brief pursuant to the procedure set forth in Delgadillo, supra, 14 Cal.5th at pages 231-232. We notified Alexander that he could file a supplemental brief on his own behalf, and that failure to do so would result in dismissal of the appeal as abandoned. (Id. at p. 232.) Alexander filed a timely supplemental brief, in which he argues that he is entitled to resentencing, new proceedings, and/or a new trial due to violations of the Racial Justice Act (§ 745) as amended by Assembly Bill No. 256 in 2022 (Stats. 2022, ch. 739, § 2). Having reviewed the supplemental brief, we conclude that Alexander does not raise an arguable issue on appeal. Accordingly, we affirm the trial court's order.
II. Discussion
An issue is arguable if it has a reasonable potential for success, and, if resolved favorably for the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.) Except in limited circumstances not applicable here, this court will not consider bases for relief that were not presented to the trial court at the time it issued its order. (See People v. Mattson (1990) 50 Cal.3d 826, 854 (Mattson); People v. Bradford (2008) 169 Cal.App.4th 843, 857 (Bradford).)
In the trial court, Alexander based his motion to dismiss his robbery conviction on his contention that "robbery under [section 211] is no longer a 'crime' of 'violence' under 18 U.S.C. § 16 (United States v. Garcia-Lopez[, supra, 903 F.3d 887])." He does not address this contention in the supplemental brief filed in this appeal. Rather, he contends that resentencing is appropriate under the Racial Justice Act (RJA), an argument he did not raise in the motion to dismiss his robbery conviction that is the subject of this appeal. There is no basis to except this new argument from the general rule, stated ante, that we do not consider issues on appeal that were not raised to the trial court. Thus, we do not consider Alexander's contentions regarding the applicability of the RJA as an arguable issue in this appeal.
In so doing, we express no opinion about the viability of Alexander's RJA arguments if properly presented to the trial court.
Regarding the initial contention that California robbery is no longer a "crime of violence" under federal law, Alexander did attach a copy of the opinion issued by the Ninth Circuit Court of Appeals in Garcia-Lopez to his supplemental brief. However, he does not provide any explanation how that decision-which concerned the application of the federal definition of "crime of violence" to a federal indictment filed against a defendant alleging violation of federal immigration laws (Garcia-Lopez, supra, 903 F.3d at pp. 893-894, 896)-has any bearing on California law concerning conviction and sentencing. Nothing on the face of the federal appellate court's decision in Garcia-Lopez reveals a basis on which to reverse the trial court's September 2023 order in this matter, which was governed by California's Penal Code.
"The term 'crime of violence' means-[¶] (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or [¶] (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." (18 U.S.C. § 16.)
In the supplemental brief, Alexander asks that new counsel represent him in any further proceedings, alleging that the attorney who represented him in his appeal from the judgment of conviction, and who we subsequently appointed to represent him in this appeal, is incompetent, seemingly based on his filing of a no-issues brief in this matter. In effect, Alexander is making a claim of ineffective assistance of appellate counsel. Ineffective assistance of appellate counsel is not a cognizable argument on appeal. An appellant must raise this claim either in a motion to relieve counsel or in a separate petition for writ of habeas corpus. (See In re Reno (2012) 55 Cal.4th 428, 487-488.) For the sake of expediency, we will treat the claim as a motion to relieve counsel and address the argument substantively here.
To show ineffective assistance of counsel, an appellant must show that counsel's performance was deficient, falling below an objective standard of reasonableness, and that appellant was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) The act of filing a no-issues brief does not, in and of itself, constitute ineffective assistance of counsel. (See People v. Serrano (2012) 211 Cal.App.4th 496, 500, 503 (Serrano) [attorney satisfies ethical duties by filing no-issues brief and does not need to withdraw as counsel before doing so].) Alexander does not identify any other basis in his supplemental brief to relieve counsel.
Because Alexander raises no arguable issue in his supplemental brief, we affirm the trial court's post-conviction order. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
Alexander attached to his supplemental brief a "notice of motion and motion for new trial" pursuant to section 1181. This motion must be brought in the trial court and does not seek relief cognizable in this court. As such the motion is denied without prejudice to Alexander making his request in the superior court, as appropriate, or seeking other cognizable relief. To the extent Alexander intended this court to consider the motion for new trial as part of his supplemental brief, he does not raise an arguable issue on appeal in the motion, as he did not cite section 1181 or the arguments raised in the motion for new trial in the motion to dismiss his robbery conviction that is the subject of this appeal. (See Mattson, supra, 50 Cal.3d at p. 854; Bradford, supra, 169 Cal.App.4th at p. 857.)
III. Disposition
The September 2023 order denying Alexander's motion to dismiss his robbery conviction is affirmed.