Opinion
B324841
05-26-2023
THE PEOPLE, Plaintiff and Respondent, v. CRAIG DARRELL DANIEL, Defendant and Appellant.
Richard B. Lennon and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles Count, No. KA112251 Juan C. Dominguez, Judge. Affirmed.
Richard B. Lennon and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
STRATTON, P. J.
Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, we review this appeal from the denial of a petition for recall of sentence brought under Penal Code former section 1171.1. We affirm the trial court's order.
Effective June 30, 2022, section 1171.1 was renumbered section 1172.75 with no change in text. (Stats. 2022, ch. 58, § 12.) In this opinion, we use the new code section.
PROCEDURAL BACKGROUND
On October 17, 2017, appellant Craig Darrell Daniel entered into a plea agreement with the People whereby he agreed to plead no contest to first degree residential burglary and to admit a gang enhancement. Appellant also admitted prior strike convictions pursuant to the Three Strikes law, one 5-year prior conviction pursuant to Penal Code section 667, subdivision (a)(1), and two prior prison terms pursuant to Penal Code section 667.5, subdivision (b). In exchange, the People agreed to an aggregate sentence of 20 years in state prison, a sentence which included one year each for two prior prison enhancements under section 667.5, subdivision (b).
On August 31, 2022, appellant filed a motion for recall of sentence pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.). He contended Senate Bill No. 483 invalidated the two prior prison term enhancements and his sentence should be reduced by two years. (Stats. 2021, ch. 728, § 3.)
On September 8, 2022, the trial denied relief finding appellant did not have standing to petition for resentencing under Penal Code section 1172.75) and Senate Bill No. 483. Appellant filed a timely notice of appeal.
We appointed counsel to represent appellant on appeal. On March 28, 2023, counsel filed a brief pursuant to People v. Delgadillo. The brief raises no issues. Counsel advises they sent appellant the record on appeal as well as a copy of the brief and told him he may file a supplemental brief within 30 days raising any issue he wishes us to consider.
On March 28, 2023, this court sent appellant a notice that a brief raising no issues had been filed on his behalf. We advised appellant he had 30 days within which to submit a supplemental brief or letter stating any ground for an appeal he wishes this court to consider. Appellant was advised that if he did not file a supplemental brief, his appeal may be dismissed as abandoned.
On April 24, 2023, appellant filed a supplemental brief raising one issue: that the two 1-year enhancements for his prior prison terms are invalid and must be vacated.
DISCUSSION
First, counsel has asked us to conduct an independent review of the record. We are not required to do so in the context of an appeal from an order denying a petition for resentencing and we decline to do so. (People v. Delgadillo, supra, 14 Cal.5th at p. 226.)
Next appellant asks us to vacate the two 1-year sentences imposed because of his prior prison terms. Effective January 1, 2020, Senate Bill No. 136 (2018-2019 Reg. Sess.) invalidated the one-year enhancement for all prior prison terms except those imposed for sexually violent offenses. (Stats. 2019, ch. 690, § 1.) The legislation was to apply retroactively to all cases not yet final on January 1, 2020. (People v. Burgess (2022) 86 Cal.App.5th 375, 380.) Then, in 2021, the Legislature enacted Senate Bill No. 483 which made the changes implemented by Senate Bill No. 136 retroactive to all persons currently incarcerated on a judgment which included this repealed sentence enhancement. This legislation took effect on January 1, 2022. (Ibid; Stats. 2021, ch. 728, § 1.)
Appellant's two 1-year sentence enhancements are indeed invalid. However, the legislation establishes a mechanism to provide affected defendants a remedy to recall such invalid enhancements. The Secretary of the Department of Corrections and Rehabilitation and the correctional administrator of each county is to identify those persons in their custody whose sentences include the now invalid enhancement. For individuals like appellant who are still serving their base term and not yet actually serving time based on the invalid enhancement, the Secretary had until July 1, 2022 to notify the sentencing court that imposed the enhancement. (Pen. Code, §1172.75, subd. (b).) After the trial court receives the information, the court is obliged to review the judgment, verify that it includes the invalid sentencing enhancement, and if so, recall the sentence. For all individuals not yet currently serving the portion of the sentence based on the affected enhancement, the trial court must act no later than December 31, 2023. (Id., subd. (c)(2).)
Given this legislative recall mechanism, appellant's request for resentencing is procedurally improper, or, at best, premature.
DISPOSITION
The order denying the motion for recall of sentence is affirmed.
We concur: WILEY, J. VIRAMONTES, J.