Opinion
H047198
02-03-2021
THE PEOPLE, Plaintiff and Respondent, v. TOMMY ROY CLEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS051672B)
Appellant Tommy Roy Clewis filed a postjudgment motion in the trial court seeking to modify his sentence by striking the prison terms imposed for using a firearm during the commission of his crimes. Clewis argued that the recent passage of Senate Bill No. 620 (2017-2018 Reg. Sess.) entitled him to such relief. On May 8, 2019, the trial court denied the motion, stating that it lacked jurisdiction to grant it. For the reasons explained below, we conclude that Clewis has appealed from a nonappealable order and thus dismiss this appeal.
I. FACTS AND PROCEDURAL BACKGROUND
In 2006, Clewis pleaded no contest to second degree robbery and assault with a deadly weapon (Pen. Code, §§ 211; 245, subd. (a)(1)) and admitted allegations that he had personally used a firearm in the robbery (§ 12022.53, subd. (b)), personally used a firearm in connection with the assault with a deadly weapon (§ 12022.5, subd. (a)), and had suffered a prior conviction for a serious felony (§ 667, subd. (a)(1)). The trial court sentenced Clewis to an aggregate term of 21 years in prison, including 10 years for the enhancement under section 12022.53, subdivision (b) and one year for the enhancement under section 12022.5, subdivision (a). Clewis did not appeal from the judgment of conviction.
Unspecified statutory references are to the Penal Code.
On or about January 28, 2019, Clewis filed in propria persona a "petition" to modify his sentence (motion). Clewis's motion consists of a one-page document that requested modification of his sentence as follows: "Exclusion of gun enhancement. PC § 12022.53(b) and PC § 12022.5(a)." The motion describes the "Reason for Modification" as "Senate Bill [No.] 620." Along with his motion, Clewis submitted a copy of the abstract of judgment in his case.
Senate Bill No. 620 took effect on January 1, 2018, and amended sections 12022.5 and 12022.53 to allow the trial court to strike firearm enhancements in the interest of justice. (See People v. Hargis (2019) 33 Cal.App.5th 199, 209; Stats. 2017, ch. 682, § 2.)
On April 4, 2019, the clerk for the Monterey County Superior Court entered a minute order stating that the trial court had set the motion for a hearing and for appointment of counsel. Prior to the scheduled hearing, the Monterey County District Attorney's Office filed an opposition to the motion that included four exhibits: (1) the 2006 information charging Clewis; (2) the waiver of rights and plea of guilty/no contest signed and initialed by Clewis in May 2006; (3) the minute order from Clewis's sentencing in May 2006; and (4) a minute order dated October 2006 stating that the trial court had denied Clewis's motion to withdraw his plea. The district attorney's opposition contended that the trial court should deny Clewis's motion because the trial court lacked jurisdiction to modify Clewis's sentence given that his case was final, and Senate Bill No. 620 did not apply retroactively to such a case.
On May 8, 2019, the trial court presided over a brief hearing. The trial court appointed a public defender to represent Clewis (who was not personally present) for purposes of his motion. At the hearing, the appointed public defender stated she had researched the case and agreed with the district attorney that the trial court lacked jurisdiction. The trial court found that it did not have jurisdiction and, on that basis, denied Clewis's motion.
On July 31, 2019, Clewis filed in the trial court a notice of appeal of its May 8, 2019 postjudgment order. We appointed counsel to represent Clewis in this court. In April 2020, appointed counsel filed an opening brief that raised no arguable issues on appeal and requested that we conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442 (Wende) and Anders v. California (1967) 386 U.S. 738, 744.
On August 10, 2020, we notified Clewis that his appointed attorney had filed an opening brief, this court was treating the brief as filed under People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), and Clewis had the right to submit written argument on his own behalf within 30 days.
Clewis timely filed a supplemental brief on his own behalf. In his supplemental brief submitted pursuant to Serrano, Clewis states that Senate Bill No. 620 "should be held retroactive to all cases, including my case." He also appears to argue that the enactment of Assembly Bill No. 1618 (2019-2020 Reg. Sess.), which relates to plea bargains, applies to his case and renders his sentence improper.
II. DISCUSSION
Under California law, a defendant is entitled to an appeal as of right from his or her judgment of conviction (§ 1237, subd. (a); People v. Kelly (2006) 40 Cal.4th 106, 117) and has the constitutional right to the assistance of counsel in that appeal (Douglas v. California (1963) 372 U.S. 353, 355). Thus, when counsel in a first appeal of right notifies the court that there are no arguable issues, the court must conduct an independent review of the record to protect the defendant's right to counsel. (Kelly, at p. 119; see also Wende, supra, 25 Cal.3d at p. 441; Serrano, supra, 211 Cal.App.4th at p. 500.) However, "[b]oth the United States Supreme Court and the California Supreme Court have concluded that due process does not require [independent] review [of the record] other than in the first appeal of right." (Serrano, at p. 500.)
This case is an appeal from a postjudgment order, not a first appeal of right from a judgment of conviction. Thus, here, under Serrano, we consider only the claims raised in Clewis's supplemental brief. (See People v. Cole (2020) 52 Cal.App.5th 1023, 1039-1040, review granted Oct. 14, 2020, S264278.)
We begin by analyzing the threshold issues of jurisdiction and appealability. "Generally, once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence. [Citations.] If the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed." (People v. Torres (2020) 44 Cal.App.5th 1081, 1084 (Torres).) While there are some exceptions to this general rule regarding jurisdiction to vacate or modify a sentence after the judgment is rendered and the sentence is executed, Clewis's motion in the trial court based on Senate Bill No. 620 does not meet any of these exceptions because "Senate Bill No. 620 [] does not contain language authorizing resentencing of convictions after they became final." (People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 (Fuimaono)). "Because the trial court lacked jurisdiction to modify defendant's sentence, denial of his motion to modify his sentence could not have affected his substantial rights. [Citation.] Accordingly, the 'order denying [the] motion to modify sentence is not an appealable order,' and the appeal must be dismissed." (Ibid.)
We recognize that the "timely filing of a notice of appeal is an absolute jurisdictional prerequisite." (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882; Bourhis v. Lord (2013) 56 Cal.4th 320, 324-325 [" 'The time to file notice of appeal, both in civil and criminal cases, has always been held jurisdictional in California.' "].) In a criminal appeal, the notice of appeal generally must be filed, subject to exceptions not applicable here, "within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rule 8.308(a).) The California Supreme Court has held that "the period for filing a notice of appeal does not begin to run against a prisoner, whose only contact with the courts is through the mail, until the prisoner receives the order from which he seeks to appeal." (People v. Griggs (1967) 67 Cal.2d 314, 318.)
In this case, the appellate record does not clearly establish when the trial court actually mailed or when Clewis received the May 8, 2019 order that is the subject of this appeal. Clewis's notice of appeal indicates that on July 26, 2019, he mailed from prison his notice of appeal. However, the record does not clarify when Clewis first received the May 8, 2019 order. We see nothing in the record establishing that Clewis did not mail his notice of appeal within 60 days of receiving the order. Liberally construing the notice of appeal, we deem it to be timely.
Other Courts of Appeal have dismissed similar appeals relating to final judgments where the defendants sought resentencing under Senate Bill No. 620. (See People v. Baltazar (2020) 57 Cal.App.5th 334, 340-341 (Baltazar); People v. Hernandez (2019) 34 Cal.App.5th 323, 327 [agreeing with holding in Fuimaono and dismissing appeal]; People v. Johnson (2019) 32 Cal.App.5th 938, 941 [holding trial court had no jurisdiction to grant relief pursuant to Senate Bill No. 620 and dismissing appeal].) As stated most recently by the Fifth District Court of Appeal, "[t]he pertinent portion of section 12022.53, subdivision (h) as amended by Senate Bill No. 620 provides: 'The court may, . . . at the time of sentencing, strike or dismiss an enhancement . . . . The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.' This language is clear and unambiguous. It is not 'susceptible of more than one reasonable interpretation . . . .' [Citation.] The only reasonable interpretation is that the authority to strike or dismiss a firearm enhancement applies only to nonfinal judgments or to final judgments where the defendant is being resentenced under some other law. [Citation.] Defendant's case presents neither situation. ' "[I]f the Legislature wanted to provide a specific procedure via petition or motion to reopen final cases for resentencing, it could have done so. (See, e.g., §§ 1170.126, 1170.18.) It did not." ' " (Baltazar, at pp. 340-341, fn. omitted.) Thus, the trial court correctly found it did not have the authority to resentence Clewis based on Senate Bill No. 620 and properly denied his motion based on lack of jurisdiction.
In his notice of appeal, Clewis argues that the denial of his motion violated his constitutional rights to equal protection. Clewis does not renew this argument in his supplemental brief and therefore we deem it abandoned.
In his supplemental brief, Clewis also relies on a newer law, Assembly Bill No. 1618 (2019-2020 Reg. Sess.), relating to plea bargains. The Governor approved Assembly Bill No. 1618 in October 2019 (§ 1016.8, as added by Stats. 2019, ch. 586, § 1), and the new law amended the Penal Code to provide, in relevant part, that "[a] provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy." (§ 1016.8, subd. (b).) Section 1016.8 does not apply to cases that are final on appeal (People v. Barton (2020) 52 Cal.App.5th 1145, 1153), and nothing in the statute authorizes a collateral attack on a final judgment.
The trial court's postjudgment order denying Clewis's motion to modify his sentence to strike the firearm enhancements—which Clewis filed long after his judgment became final—is not appealable. (See Baltazar, supra, 57 Cal.App.5th at p. 342; Torres, supra, 44 Cal.App.5th at p. 1088; Fuimaono, supra, 32 Cal.App.5th at p. 135.) We therefore must dismiss the appeal.
III. DISPOSITION
The appeal is dismissed.
/s/_________
Danner, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.