Opinion
F087466
10-02-2024
THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO ALDERETE, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF277041. Kerri Gilmore, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellant Marco Antonio Alderete appeals from the trial court's order denying resentencing under Penal Code section 1172.75 (formerly § 1171.1). Appellant's appointed appellate attorney filed a no-merits brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) requesting we independently review the record. This court subsequently gave appellant notice of his right to file a supplemental letter or brief raising any arguable issues on his own behalf, and appellant filed such a brief. We have considered appellant's arguments and affirm the trial court's order denying resentencing.
All further undesignated statutory references are to the Penal Code.
RELEVANT PROCEDURAL BACKGROUND
In October 2016, a jury found appellant guilty of attempted murder (§ 664/187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). As to count 1, the jury additionally found true appellant personally used a dangerous and deadly weapon, a baseball bat, in the commission of the offense (§ 12022, subd. (b)(1)), and as to both counts, the jury found true that appellant personally inflicted great bodily injury (GBI) to the victim (§ 12022.7). In the sanity phase of appellant's trial, the jury found appellant was legally sane at the time of the commission of the offenses. In a bifurcated bench trial, the court found appellant had suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), one prior serious felony (§ 667, subd. (a)(1)), and one prison prior (§ 667.5, subd. (b)).
Appellant was sentenced in March 2017. As to count 1, the court sentenced appellant to a prison term of 27 years to life (§ 1170.12(c)(2)(A)(i)), plus three years for the GBI enhancement, one year for the weapon enhancement, five years for the prior serious felony, "and an additional and consecutive one year pursuant to [section] 667.5(b), which I'm gonna strike that one year, for a total term of 27-years-to-life plus nine years." As to count 2, the court sentenced appellant to a term of 25 years to life (§ 1170.12(c)(2)(A)(ii)), plus three years for the GBI enhancement, five years for the prior serious felony, "and then an additional and consecutive-I'm gonna strike that, the one year pursuant to [section] 667.5." The court stayed punishment on count 2 pursuant to section 654.
At sentencing, it appears the court may have misspoken and said "12022.1" instead of "12022, subdivision (b)(1)," which caused an error on the abstract of judgment. This error was subsequently corrected.
In August 2022, the court received notice from the Department of Justice that appellant's case should be reviewed pursuant to Senate Bill No. 483, as codified under now former sections 1171 and 1171.1. The matter was placed on calendar and continued several times.
Former section 1171, renumbered as section 1172.7, applies to enhancements imposed under Health and Safety Code section 11370.2, which does not appear to apply to appellant.
Former section 1171.1, renumbered as section 1172.75, declares a sentence enhancement not imposed for a sexually violent offense prior to January 1, 2020, pursuant to section 667.5, subdivision (b), is "legally invalid." (§ 1172.75, subd. (a).) Section 1172.75, subdivision (b) directs the Secretary of the CDCR and the correctional administrator of each county to "identify those persons in their custody currently serving a term for a judgment that includes [a section 667.5, subdivision (b)] enhancement .. and ... provide the name of each person, along with the person's date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement." (§ 1172.75, subd. (b).) After the trial court receives from the CDCR and county correctional administrator the information included in subdivision (b) of the statute, "the court shall review the judgment and verify that the current judgment includes" the sentencing enhancement and if so, "recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).)
The hearing was ultimately conducted on December 4, 2023. Defense counsel requested a "full resentencing" because appellant "was convicted of 667.5(b)." The prosecutor argued appellant was not entitled to resentencing as a matter of law because the section 667.5, subdivision (b) enhancement was stricken by the sentencing court.
Defense counsel noted a split in authority regarding resentencing when an enhancement is stricken versus stayed but did not go into more detail than that. The court denied resentencing based on the ground that the section 667.5, subdivision (b) enhancement "was stricken and therefore never imposed."
On January 16, 2024, appellant filed a notice of appeal from the denial of resentencing. His appointed counsel subsequently filed a brief pursuant to Wende, supra, 25 Cal.3d 436 and Delgadillo, supra, 14 Cal.5th 216. This court notified appellant that this court was not required to independently review the record and that he had 30 days to file a supplemental letter or brief on his own behalf to raise any arguable issues. Appellant did timely file such a brief raising several issues.
On December 29, 2023, appellant sought a certificate of probable cause, which was denied.
DISCUSSION
In Wende, our Supreme Court held that "Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal which raises no specific issues or describes the appeal as frivolous." (Delgadillo, supra, 14 Cal.5th at p. 221.) The Wende procedure applies "to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution." (Ibid.)
In Delgadillo, the Supreme Court held that the Wende independent review procedure is not constitutionally required in an appeal from a postconviction order denying a section 1172.6 petition for resentencing because the denial does not implicate a defendant's constitutional right to counsel in a first appeal as of right. (Delgadillo, supra, 14 Cal.5th at pp. 222, 224-226.) The court further found that general due process principles regarding fundamental fairness does not compel a Wende independent review of the order. (Id. at pp. 229-232.) However, the court explained that if a no-issues brief is filed in a section 1172.6 appeal and the defendant then "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." (Id. at p. 232.) The reviewing court is not required to conduct "an independent review of the entire record to identify unraised issues" but may do so at its discretion. (Ibid.)
While Delgadillo addressed the application of Wende's review procedures in the context of a postconviction relief order under section 1172.6 (Delgadillo, supra, 14 Cal.5th at p. 231, fn. 5 ["[i]n this case, we are not deciding Wende's application to other postconviction contexts, which may present different considerations"]), which is not the type of postconviction order at issue here, the same principles may nonetheless apply given that this does not appear to be a first appeal as of right. Following Delgadillo's guidance, we shall consider the arguments appellant raises in his supplemental brief. We conclude none of them have merit.
The majority of appellant's contentions relates to his initial sentencing. He contends that: (1) his Romero motion to strike his prior strike juvenile adjudication was error because it was based on misinformation and because it did not qualify as a strike offense; (2) the court erroneously imposed a sentence enhancement pursuant to section 12022.1 indicating appellant was out on bail when the offense was committed; (3) that he is entitled to resentencing pursuant to section 1385 as amended by Senate Bill No. 81; and (4) the court "improperly stayed" the section 667.5, subdivision (b) enhancement.
Appellant spends much of his briefing disputing the truth of his juvenile adjudication from 1996-a true finding of attempted murder with GBI and personal use of a weapon-alleging there were mitigating factors and that he shot the victim in self-defense and defense of others.
As indicated above, the erroneous section 12022.1 enhancement was corrected, which appellant acknowledges.
As indicated above, the court did not stay the section 667.5, subdivision (b) enhancement; it struck the punishment associated with it.
Appellant also contends much of his criminal history is incorrect because he has experienced identity theft.
These contentions are simply not properly before us. The judgment of appellant's convictions occurred in March 2017, and the time to appeal has long passed. (Cal. Rules of Court, rule 8.308(a).) The only order from which appellant has timely appealed in this proceeding is the December 4, 2023 order denying resentencing under section 1172.75 on the grounds that appellant was not serving a sentence for a section 667.5, subdivision (b) prior prison term enhancement. We have no jurisdiction to review any previous judgment or order.
Appellant previously timely appealed from the judgment of his conviction in People v. Alderete (June 18, 2019, F075445) and did not raise any of the issues he now raises. The remittitur in that case was issued on August 23, 2019, following a denial of appellant's petition for review by the California Supreme Court.
Appellant makes two brief arguments with regard to the section 1172.75 order. He first argues he is entitled to resentencing based on People v. Christianson (2023) 97 Cal.App.5th 300, review granted February 21, 2024, S283189. The Christianson court held that section 1172.75 applies to defendants serving prison time on an abstract of judgment that includes a section 667.5, subdivision (b) enhancement that was imposed and stayed and that such a defendant is entitled to a full resentencing. (Christianson, at p. 311.) Here, appellant's section 667.5, subdivision (b) enhancement was not, as appellant asserts, imposed and stayed. Rather, the court found it true, struck the additional punishment, and accordingly, the enhancement does not appear on appellant's abstract of judgment. Thus, Christianson does not directly assist appellant, and appellant has not explained why it should be applied to cases, like his, where the section 667.5, subdivision (b) enhancement punishment was stricken. As the Christianson court points out in its reasoning: "When a punishment is stayed, as opposed to stricken, the trial court retains the ability to lift the stay and impose the term under certain circumstance, such as if an alternately imposed term is invalidated. [Citation.] Thus, a stayed sentence enhancement remains as part of the judgment and continues to carry the potential for an increased sentence in certain circumstances, and removal of the stayed enhancement does provide some relief to the defendant by eliminating that potential." (Christianson, at p. 312, italics added.) Appellant has not persuaded us that Christianson applies to the situation presented in the instant case.
Appellant also cites People v. Cota (2023) 97 Cal.App.5th 318 for the proposition that the trial court had jurisdiction to resentence him, as it was triggered by the CDCR's notification. That the trial court had the jurisdiction or authority to resentence appellant is not in dispute. Rather, whether appellant was eligible for resentencing pursuant to the statutory scheme was what was at issue, and we find no error with the court's decision not to resentence appellant.
As we have stated, pursuant to Delgadillo, we are not required to perform an independent review of the record.
DISPOSITION
The court's order denying resentencing is affirmed.
[*] Before Detjen, Acting P. J., Snauffer, J. and DeSantos, J.