Filed 4/26/16 P. v. Cordova CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B266340

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA033094)
         v.

STEVE CORDOVA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
William C. Ryan, Judge. Affirmed.


         Jonathan B. Steiner, Executive Director, Richard B. Lennon, California Appellate
Project, under appointment by the Court of Appeal, for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P.
Hill, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       On April 1, 2016, appellant Steve Cordova filed an application for the recall of his
sentence under Penal Code section 1170.126. The superior court denied the application
because it was filed more than two years after the effective date of Proposition 36
(November 7, 2012) and also because there was no good cause for the delay in filing the
application. We agree with the trial court that in this case there was no good cause to
justify the untimely filing, and therefore affirm the judgment.
                              PROCEDURAL HISTORY
       On October 29, 1998, in Los Angeles County Superior Court case No. GA033094,
appellant was convicted by a jury of grand theft auto (Pen. Code, § 487, subd. (d)),1
possession of a forged driver’s license (§ 470, subd. (b)) and the misdemeanor offense of
evading an officer (Veh. Code, § 2800.1). Appellant was found to have sustained seven
prior convictions within the meaning of the Three Strikes law and with having served
four prior prison terms. Appellant was sentenced on January 26, 1999, to two concurrent
25-years-to-life prison terms under the Three Strikes law and to two consecutive one-year
prison term enhancements.2
       On March 3, 2015, appellant filed an application in case No. GA033094 under
section 1170.18 to reduce the felonies to misdemeanors. The People opposed this
application. The superior court denied this application on March 6, 2015,
on the ground that the offenses in question were not eligible to be reduced to
misdemeanors. There appears to have been no appeal from this order.




1      All statutory references, unless otherwise noted, are to the Penal Code.
2      In another proceeding that has no direct relationship to this appeal, appellant was
found guilty on March 5, 1999, by a jury in Los Angeles County Superior Court case No.
SA030400 of second degree robbery (§ 211) and carjacking (§ 215, subd. (a)). He was
also found to have been armed with a dangerous weapon during the commission of these
offenses. He was sentenced under the Three Strikes law to a term of 72 years to life for
theses offenses, a term which included four 5-year terms for prior serious felony
convictions. This sentence was to run consecutively to the sentence in case No.
GA033094.

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          On April 1, 2015, in case No. GA033094, appellant filed an application under
section 1170.126 to recall the sentence and to reduce his sentence to a determinate term
of six years, with three years each for the grand theft auto and forged driver’s license, and
(apparently) a concurrent jail term for evading an officer. On June 9, 2015, the superior
court denied the application as untimely, having been filed five months after the deadline
of November 7, 2014, and also because “no good cause has been shown which would
excuse compliance with this deadline.”
          On June 29, 2015, appellant filed a “Request for Relief from Default and for
Reconsideration of Order Denying Proposition 36 Petition” (hereinafter, Request for
Relief). The superior court denied this request on July 17, 2015. This appeal is from that
order.3
                    THE GROUNDS ASSERTED FOR LATE FILING
          The Request for Relief states that soon after the passage of Proposition 36,
appellant wrote the public defender, who replied that because one or more of appellant’s
prior convictions were for serious or violent felonies, he was ineligible. Appellant also
heard from persons he describes as “prison law library inmate clerks” that sooner or later
someone would take up the question whether inmates with “combination judgments of
eligible and ineligible counts” would be entitled to relief on the eligible counts.
Accordingly, appellant “. . . opted to wait and see since he had been told he had 2 years
from 11-7-2012 and reasonably figured something would happen in his favor in that
time.”
          The Request for Relief goes on to relate that in Braziel v. Superior Court (Apr. 9,
2014) 225 Cal.App. 933, review granted on Jul. 30, 2014, the Court of Appeal had held
that if any of the counts were serious or violent felonies, the inmate was barred from



3     The order denying a petition or application submitted under section 1170.126 is
appealable. (Teal v. Superior Court (2014) 60 Cal.4th 595, 601.) We construe the
Request for Relief to be the application under section 1170.126 since it fully sets forth
Cordova’s case.


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seeking relief. According to appellant’s opening brief, there were three other published
decisions which so held.4 The “inmate clerks” informed appellant, apparently based on
Braziel v. Superior Court, that he was precluded from relief under Proposition 36. The
Request for Relief states: “. . . so Jackson [an alias for appellant] did not file.”
       We digress from an account of the Request for Relief to note that in In re
Machado (May 30, 2014) 226 Cal.App.4th 1044, 1057, review granted Jul. 30, 2014, the
Court of Appeal held that a person who had been convicted of both an ineligible and an
eligible offense was nonetheless entitled to Proposition 36 relief on the eligible count.
This was the view eventually endorsed by the California Supreme Court in People v.
Johnson and Machado (Jul. 2, 2015) 61 Cal.4th 674.
       Returning to the Request for Relief, appellant relates that upon the passage of
Proposition 47, he “had new hope” and that he filed an application to reduce one (or
possibly more than one) of his convictions to a misdemeanor but that this application was
denied, allegedly with instructions that “he may only file a Prop[] 36 petition—but did
not advise [appellant] he would also need to include an explanation why his Prop[] 36
petition was being filed after 11-7-2014.”
       The Request for Relief closes by noting that the issue was pending before the
California Supreme Court. In fact, People v. Johnson and Machado, supra, 61 Cal.4th
674, came down three days after the Request for Relief was filed. Noting that it was not
clear what constitutes good cause for delay in filing an application for relief, the Request
for Relief concludes by stating that appellant “. . . believes that waiting for a decision
from the Supreme Court on the question of threshold eligibility for persons committed on
so-called ‘hybrid’ judgments probably constitutes good grounds to relieve a party from
default and permit an untimely Prop[] 36 petition.”




4      Braziel v. Superior Court was neither the first nor last case on this issue.


                                               4
                                    THE TIMETABLE
       April 9, 2014         Braziel v. Superior Court (2014) 225 Cal.App. 933
       May 30, 2014          In re Machado (2014) 226 Cal.App.4th 1044
       July 30, 2014         The Supreme Court grants the petitions for review in Braziel
                             and Machado
       November 7, 2014 The two-year limitation on filing section 1170.126 expires
       April 1, 2015         Appellant files his first section 1170.126 petition
       June 29, 2015         Appellant files the Request for Relief
       July 2, 2015          The Supreme Court hands down People v. Johnson and
                             Machado (2015) 61 Cal.4th 674.
                         THE SUPERIOR COURT’S RULING
       The superior court’s written ruling states: “[Appellant] admits that he knew of the
two-year deadline imposed by Penal Code section 1170.126(b) from the effective date of
Proposition 36 (November 7, 2012). He made a calculated decision not to file his own
petition within the two-year time frame when he could have filed his own petition, had it
denied and filed an appeal or waited for an appeal from another petitioner’s denied
petition on the same point of law. Instead, [appellant] failed to timely file his petition and
simply hoped that the law would change within the two-year time frame. Having second
thoughts, it appears that [appellant] then filed an untimely petition almost five months
after the two-year deadline imposed by Penal Code section 1170.126(b). [¶] Many other
inmates have timely filed their petitions without hoping that the law would change in
their favor prior to filing the petition. They simply filed their petitions in a timely fashion
and awaited the trial court’s decision before appealing an unfavorable ruling. Here,
[appellant] admits that he expressly knew of Proposition 36’s deadline and made a
calculated decision not to file in a timely manner. He illogically ‘figured [a change in the
law] would happen in his favor in that time.’ [Citation.] [¶] Accordingly, the Court did
not find ‘good cause’ under Penal Code section 1170.126(b) after [appellant’s] April 1,
2015 petition was late filed and it does not find any new law, facts or circumstances to



                                              5
warrant reconsideration of its prior order denying the petition for recall of sentence under
Penal Code section 1170.126.”
                               APPLICABLE STANDARDS
1.     Standards governing delays in filing
       Subdivision (b) of section 1170.126 provides in pertinent part that a person may
file a petition “for a recall of sentence, within two years after the effective date of the act
that added this section or at a later date upon a showing of good cause.” Appellant and
respondent agree that section 1170.126 does not define “good cause.”
       Section 1382 contains various time limitations that ensure that a defendant
receives a speedy trial. Appellant suggests, and respondent agrees, that the judicially
crafted elements of good cause under section 1382 should apply to good cause as set
forth in section 1170.126, subdivision (b): “Section 1382 does not define ‘good cause’ as
that term is used in the provision, but numerous California appellate decisions that have
reviewed good-cause determinations under this statute demonstrate that, in general, a
number of factors are relevant to a determination of good cause: (1) the nature and
strength of the justification for the delay, (2) the duration of the delay, and (3) the
prejudice to either the defendant or the prosecution that is likely to result from the delay.”
(People v. Sutton (2010) 48 Cal.4th 533, 546.)
       Bringing a person to trial is, of course, an entirely different matter from filing an
application under section 1170.126. However, the analogy is not based on the similarity
in the functions that are involved in sections 1382 and 1170.126 but rather on whether
delays should be evaluated along similar lines under these provisions.
       It seems that delay and good cause have identical relationships in sections
1170.126 and 1382. Delay is a negative under both provisions and good cause functions
under both provisions as a rationale or excuse for the delay.
       Prejudice, on the other hand, is far less likely to be a significant factor under
section 1170.126 than under section 1382. Under the latter provision, prejudice is a very
important and highly pertinent consideration. However, under section 1170.126, it is
difficult to see how the prosecution would ever be significantly prejudiced by a delay in

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the filing of an application under section 1170.126. Thus, we conclude that the first two
factors set forth in People v. Sutton, supra, 48 Cal.4th 533, 546, are helpful analytical
tools in the determination of good faith under section 1170.126 but that the third factor is,
in most cases, of little or no moment.
2.     Standards of appellate review
       Respondent states that the standard of appellate review should be whether the trial
court abused its discretion in making the good faith determination. While respondent
suggests that appellant would also apply this standard, it appears to us that this may not
be the case since appellant contends that the superior court erred in concluding that good
cause was not shown. At another juncture, however, appellant’s opening brief states that
good cause determinations are reviewed for abuse of discretion.
       It has been noted that good cause determinations generally are subject to the abuse
of discretion standard of review. (Eisenberg et al., Cal. Practice Guide: Civil Appeals
and Writs (The Rutter Group 2015) ¶ 8:104.21, p. 8-71.) Good cause determinations
under section 1382 are reviewed under the abuse of discretion standard. (People v.
Sutton, supra, 48 Cal.4th at pp. 546-547.)
       We will not decide as a general proposition which standard should govern because
in this case there is no dispute about the facts. The issue before us is whether, as a matter
of law, waiting for a Supreme Court decision is good cause for the late filing of a section
1170.126 application. When the issue on appeal is one of law, usually the independent or
de novo standard of review applies. (Eisenberg et al., Cal. Practice Guide: Civil Appeals
and Writs, supra, ¶ 8:106, p. 8-74, citing, inter alia, Aryeh v. Canon Business Solutions,
Inc. (2013) 55 Cal.4th 1185, 1191.)
                THERE WAS NO GOOD CAUSE FOR THE DELAY
       The justification for late filing that appellant offers in his petition for a writ of
error coram nobis is that he was waiting for the California Supreme Court to decide what
turned out to be People v. Johnson and Machado, supra, 61 Cal.4th 674. In appellant’s
brief on appeal, he claims there was good cause because he was told by the public



                                               7
defender’s office and by the prison library inmate clerks that he was not eligible and this
excused him from filing his petition.
         We begin our discussion of these justifications with the superior court’s
observation that the decision to delay past the deadline was a calculated decision on
appellant’s part. This is certainly confirmed by the petition for the writ of error coram
nobis, as well as by appellant’s briefs on appeal. Thus, the usual grounds for rescuing a
litigant who has filed late—mistake, inadvertence, surprise, or excusable neglect—are not
even remotely invoked. This means that analysis must center on the reason or reasons for
deliberately delaying the filing. By what standard should those reasons be judged in
determining whether they constitute good cause?
         If the “good” in good cause means anything in the context of this case, it means
that the reason given should be at least arguably a sound reason. Certainly, a frivolous
reason could not qualify as good cause. The soundness of the reasons given can be
evaluated in terms of what we know about the operations of the legal system. If, on
balance, the reason given is sound, the reason ought to amount to good cause. However,
the less sound the reason, the more likely that there should not be a finding of good
cause.
         With the foregoing in mind, we analyze the soundness of the reasons appellant
gives for the deliberate late filing.
         Appellant gives two reasons, one in his petition and the other in his appellate brief,
why he deliberately decided not to file within the deadline. Both of those reasons are
predicated on the assumption that following the decision in Braziel v. Superior Court,
supra, 225 Cal.App. 4th 933, the law was against him. That is, he was waiting for the
Supreme Court decision in the hope that the law would change in his favor (the reason in
the petition) and he was told by various parties that, under existing law, he was ineligible
(the reason in the appellate brief).
         However, it is not true that the law was uniformly against him.
         Between May 30, 2014 and July 30, 2014, In re Machado, supra, 226 Cal.App.4th
1044, 1057, held in appellant’s favor. Had he filed his application between May 30, 2014

                                               8
and July 30, 2014, he could have relied on In re Machado. The application would have
been timely and it would have been supported by a favorable appellate decision.
       Appellant cites In re Machado, supra, 226 Cal.App.4th 1044, in his appellate
brief, but he does not acknowledge that this case significantly undermines his claim that
the law was against him.
       Machado is significant for more than its midsummer night’s existence from May
to July 2014. When the issue wound up in the Supreme Court on July 30, 2014, with the
grants of review in all the cases on threshold eligibility, there was at least one case that
favored appellant’s side of the issue and that was, of course, Machado. That it is not
numbers but principles that count in this setting is shown by the fact that the Supreme
Court opted for Machado. Thus, appellant’s position throughout 2014 and before the
deadline was not nearly as hopeless as he portrays it. In fact, some might say that if the
Courts of Appeal are split on a given issue, one would usually give both sides something
close to an even chance of success.
       Given what the situation actually was in 2014, and particularly in the early
summer of that year, and also given that there was a clear two-year limitations period,
there simply was no reason not to file the section 1170.126 petition or application prior to
the deadline. We agree with the superior court’s observation that many inmates did file
their petitions in a timely manner without the hope that the law would change in their
favor. There was absolutely no downside for appellant to have done the same.
       Another way of evaluating the decision not to file is that there was nothing to be
gained by not filing. Appellant’s chances were not improved by not filing; in fact, they
were diminished by not filing, in that appellant was not in a position to benefit from what
eventually happened. It was much better to be waiting for a Supreme Court decision with
a petition on file than to wait for it with an unfiled petition.
       As far as not filing because appellant was told he was ineligible, the law, as we
have seen, was much in flux throughout 2014. Given the instability and flux in the
system, it was simply too early to conclude that appellant was ineligible.



                                                9
       In sum, taking account of the realities of the legal system, neither reason given by
appellant is sound. In fact, both reasons are remarkably poor.
       Finally, appellant’s position is substantially weakened by the fact that he did not in
fact wait until the Supreme Court made its decision. If he filed the application, as he did,
late and before the Supreme Court decision, why not file the application in a timely
fashion, albeit also before the Supreme Court’s decision? This strongly suggests that the
good cause that appellant espouses—waiting for the Supreme Court decision—was not in
fact the cause of the delay. As far as ineligibility is concerned, that became an open
question as soon as the Supreme Court granted review in July 2014. Appellant was no
less or more eligible when he ultimately filed his application than he was prior to the
expiration of the two-year limitations period. In short, appellant’s act of filing the
untimely petition before the decision of the Supreme Court in People v. Johnson and
Machado, supra, 61 Cal.4th 674, seriously undermines his credibility in claiming to rely
on the two stated reasons for not filing. Thus, not only were his reasons unsound, it is
questionable whether he ever actually relied on them.
       Finally, while the delay was short, the case for filing in a timely manner was, on
these facts, so strong as to render the factor of the length of the delay relatively
unimportant.
       We hold as a matter of law that, on these facts, neither reason given by appellant
not to file a petition under section 1170.126 by the statutory deadline was good cause
under subdivision (b) of section 1170.126.
                                       DISPOSITION
       The judgment (order) is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                            BOREN, P.J.
We concur:


       CHAVEZ, J.                           HOFFSTADT, J.

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