Opinion
D076822
04-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JILBRAUN DANDTON AGNEW, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD220189) APPEAL from an order of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I.
INTRODUCTION AND BACKGROUND
In 2009, a jury found Jilbraun Dandton Agnew guilty of assault by means likely to produce great bodily injury (Count 1; Penal Code §§ 245, subd. (a)(1); 12022.7, subd. (a); 1192.7, subd. (c)(8)) and battery with serious bodily injury (Count 2; §§ 243, subd. (d); 1192.7, subd. (c)(8)). Agnew waived his right to a jury trial on the issue of alleged priors and admitted two serious felony priors pursuant to section 667, subdivision (a)(1), and section 1192.7, subdivision (c), and two strike priors pursuant to section 667, subdivisions (b)-(i), and section 1170.12.
All further statutory references are to the Penal Code.
The superior court sentenced Agnew to an indeterminate term of 38 years to life, including a base term of 25 years to life on Count 1, plus an additional five years each for two serious felony priors pursuant to section 667, subdivision (a)(1), and an additional three years based on the infliction of great bodily injury to a non-accomplice pursuant to section 12022.7, subdivision (a). The court stayed an additional sentence on Count 2 pursuant to section 654. The court imposed a court security fee of $60 pursuant to section 1465.8, a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b), and a suspended restitution fine of $10,000, and ordered that Agnew pay the victim restitution in the amount of $72,400.12.
Agnew appealed, and this court affirmed the judgment in a prior opinion, subject to modification of the abstract of judgment with respect to Count 2. (See People v. Agnew (November 16, 2010, D056495) [nonpub. opn.].)
Nearly 10 years later, in 2019, Agnew filed a motion for appointment of counsel and for modification of his sentence pursuant to section 1170.126. In the motion, Agnew also asked the superior court to exercise its discretion under section 1385 to strike the two five-year enhancements pursuant to section 667, subdivision (a)(1). After reviewing the motion and the relevant court files, the superior court found that Agnew was not entitled to relief under section 1170.126 or section 1385. Accordingly, the superior court denied the motion.
Agnew filed a timely notice of appeal from the superior court's order. Appointed appellate counsel for Agnew filed a brief presenting no argument for reversal but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Agnew subsequently filed a supplemental brief on his own behalf.
Finding no reasonably arguable appellate issue following an independent review of the record, we affirm the superior court's order.
II.
DISCUSSION
Agnew's appellate counsel has filed a brief, pursuant to Wende, supra, 25 Cal.3d 436, in which counsel raises no issues on appeal and requests that we independently review the record. Counsel has identified the following issues that "might arguably support the appeal" (Anders v. California (1967) 386 U.S. 738, 744 (Anders)):
"1) Whether the trial court erred in denying appellant's motion for appointment of counsel?
"2) Whether the trial court erred in finding appellant ineligible for resentencing to consider whether to dismiss one or both of appellant's prior strikes under Proposition 36 and Penal Code section 1170.126?
"3) Whether the trial court erred in denying appellant's request for resentencing to consider whether to dismiss one or both of appellant's serious felony priors pursuant to SB 1393 which amended Penal Code sections 667, subdivision (a), and 1385?
"4) Whether the trial court erred in failing to hold an ability to pay hearing with regard to reducing the fines and fees previously imposed in light of People v. Dueñas (2019) 30 Cal.App.5th 1157?"
On March 17, 2020, we sent a letter to Agnew informing him that his attorney had filed a brief pursuant to Wende, supra, Cal.3d 436, and allowing him 30 days to personally submit any supplemental brief that he deemed necessary. Agnew submitted a brief in which he argues many of the same issues raised by his counsel.
Agnew asserts that the superior court erred by denying his request for resentencing pursuant to section 1170.126. A defendant is eligible for resentencing under section 1170.126 if he or she is serving an indeterminate term of life imprisonment for "a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7." (§ 1170.126, subd. (e)(1); People v. Drew (2017) 16 Cal.App.5th 253, 256.) The jury convicted Agnew of assault by means of force likely to produce great bodily injury and found true an allegation that he inflicted great bodily injury to a non-accomplice within the meaning of section 12022.7, subdivision (a), and section 1192.7, subdivision (c)(8). Accordingly, the superior court correctly determined that Agnew is serving a term for a serious felony and therefore, is not eligible for resentencing under section 1170.126.
Next, Agnew asked the superior court, and now asks this court, to exercise its discretion under section 1385 to strike the two five-year sentence enhancements imposed under section 667, subdivision (a). Senate Bill No. 1393 amended sections 1385 and 667 to eliminate the previous prohibition on striking prior serious felonies and, instead, permitting the trial court discretion to strike or dismiss prior serious felony enhancements pursuant to section 667, subdivision (a). (See Legis. Counsel's Dig. Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2 ["This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of [a] 5-year enhancement"].) The amendments became effective on January 1, 2019, and apply retroactively to all cases not yet final as of that date. (People v. Garcia (2018) 28 Cal.App.5th 961, 973 (Garcia).) The December 2009 judgment of conviction became final after this court issued a remittitur in 2011. (See People v. Agnew, supra, D056495; Garcia, supra, at p. 973; Teal v. Sup. Ct. (2014) 60 Cal.4th 595, 599 [appeal from denial of request for resentencing under section 1170.126 is not an appeal of the original conviction].)
Agnew asserts that he is entitled to relief because the present appeal is not yet final but if, as here, the defendant does not meet the criteria for relief under section 1170.126, the trial court must simply deny the petition; the court has no power to reach any other aspects of the defendant's sentence. (See People v. Clark (2017) 8 Cal.App.5th 863, 874; People v. Brown (2014) 230 Cal.App.4th 1502, 1511-1512.) Agnew cannot now seek relief that he would not otherwise be entitled to under section 1385, including the recent amendments thereto, simply by bootstrapping that request to a facially invalid request for resentencing under section 1170.126. (See Brown, supra, at pp. 1511-1512 [finding a similar contention was not an arguable issue on appeal].)
Agnew also raises several other arguments that are beyond the scope of this appeal. First, Agnew relies on Dueñas to assert that the trial court erred by imposing certain fines and fees in the December 2009 judgment absent an ability to pay hearing. As discussed, that judgment is now final. (See People v. Agnew, supra, D056495.) The current appeal is from the superior court's October 2, 2019, order denying Agnew's motion for appointed counsel and resentencing, and is limited to issues arising out of that order. (See Morton v. Wagner (2007) 156 Cal.App.4th 963, 967 (Morton) ["[T]he notice of appeal . . . defines the scope of the appeal by identifying the particular judgment or order being appealed."].)
Even if we were to consider the arguments Agnew raises in accordance with Dueñas, he forfeited any such arguments by failing to assert an inability to pay when the superior court imposed a restitution fine that exceeds the statutory minimum. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) --------
In addition, Agnew asserts that the information was amended in October 2009 to charge an additional offense not committed on the same occasion or arising from the same set of operative facts as the originally charged offense, that his counsel improperly advised him to plead guilty to his priors, that he was not afforded a trial by jury on the issue of the priors, that he was not afforded a proper "Three Strikes hearing" to determine whether the prior convictions were for serious or violent felonies, and that his prior felonies were not violent or serious. These issues also arise from the original December 2009 judgment and are not within the scope of this appeal. (See Morton, supra, 156 Cal.App.4th at p. 967.)
Finally, since it is clear that Agnew is not entitled to any relief under the statutes at issue, the superior court did not err by denying his request for appointed counsel, nor was Agnew prejudiced by any such error.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issue raised by counsel and by Agnew himself in his supplemental brief, has disclosed no reasonably arguable appellate issue. Agnew was represented by competent counsel in this appeal.
III.
DISPOSITION
The order of the superior court is affirmed.
/s/_________
AARON, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
GUERRERO, J.