Opinion
D076646
03-27-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALFRED FANELLI, Defendant and Appellant.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Allison V. Acosta, Deputy Attorney General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI022474) APPEAL from an order of the Superior Court of San Bernardino County, Robert Glenn Yabuno, Judge. Affirmed. Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Allison V. Acosta, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted Michael Alfred Fanelli of attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd. (a); count 1) and assault with a firearm (§ 245, subd. (a)(2); count 2). The jury also found true allegations that Fanelli personally used a firearm (§ 12022.5, subd. (a)) and personally caused great bodily injury to the victim (§ 12022.7, subd. (a)) during the commission of the crimes. Fanelli further admitted a prior conviction for assault with a firearm, which constituted both a serious felony conviction under section 667, subdivision (a)(1), and a strike under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12), and that he had served a prior prison term for that conviction as well as serving a separate prison term for a felony drug conviction.
All statutory references are to the Penal Code unless otherwise specified. --------
The trial court sentenced Fanelli to prison for a total term of 30 years, consisting of the upper term of five and a half years for the count 1 attempted voluntary manslaughter, doubled under the three strikes law, plus consecutive terms of three years for the great bodily injury enhancement, the upper term of 10 years for the firearm use enhancement, five years for the prior serious felony, and another year for a prior prison term.
In Fanelli's first appeal (D050425), this court affirmed his convictions but vacated his sentence as constitutionally flawed and remanded for resentencing. On remand, the trial court again sentenced Fanelli to a total term of 30 years, which included the upper terms for the count 1 attempted voluntary manslaughter offense and the firearm use enhancement. Fanelli again appealed his sentence (D052636) and this court affirmed the judgment in February 2009.
The record in the present appeal shows that Fanelli filed a petition for modification of his sentence in November 2014. The trial court denied that petition on the ground Fanelli "[did] not satisfy the criteria in [section] 1170.18 and is not eligible for resentencing." In August 2019, Fanelli filed a "motion for modification [of] sentence under . . . section 654; and Supreme Court case law standards." (Some capitalization omitted.) His present appeal is from the order denying that motion.
FACTS
There is no information regarding the facts underlying Fanelli's convictions in the present record or in this court's opinion in Case No. D052636. The statement of facts in the opinion filed in Case No. D050425 reveals that Fanelli shot an unarmed male with a revolver in the groin area and upper chest during a confrontation outside of the victim's apartment. The victim was transported to a hospital emergency room by helicopter and treated for multiple, life-threatening gunshot wounds. He testified that the bullets could not be removed from his body and that as a result of his injuries, he would have medial issues, including nerve damage, difficulty sleeping and pain for the rest of his life.
DISCUSSION
We asked Fanelli's counsel and invited the People to submit a letter brief addressing whether the order denying Fanelli's motion for modification of his sentence is an appealable order. Our request for briefing stated: "Although an order made after judgment affecting a defendant's substantial rights is appealable under section 1237, subdivision (b), once a judgment is rendered, except for limited statutory exceptions (§§ 1170.126, 1170.18), the sentencing court is without jurisdiction to vacate or modify the sentence, except under the provisions of section 1170, subdivision (d). (People v. Hernandez (2019) 34 Cal.App.5th 323, 326.) When the trial court is without jurisdiction to modify a sentence, an order denying a motion to modify the sentence does not affect the defendant's substantial rights and, therefore, is not appealable. (Id. at p. 327; People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.)" We requested briefing on whether the instant appeal should be dismissed on the ground it is taken from a nonappealable order.
The People filed a letter brief arguing the appeal should be dismissed under the reasoning set forth in our request for briefing. Fanelli's counsel filed a letter brief arguing the appeal should not be dismissed because Fanelli claimed in his motion for modification that his sentence violated section 654 and was therefore unauthorized. Counsel cited case law supporting the propositions that an unauthorized sentenced may be corrected at any time (People v. Scott (1994) 9 Cal.4th 331, 354-355), and a sentence that violates section 654 is an unauthorized sentence. Accordingly, the trial court had jurisdiction to decide whether Fanelli's sentence was unauthorized based on his claim that the imposition of certain enhancements violated section 654. We find counsel's argument that the trial court had jurisdiction to decide his section 654 claim meritorious and therefore address the appeal on the merits.
Fanelli's counsel has filed a brief summarizing some of the proceedings below. Counsel presents no argument for reversal and asks this court to review the record in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Counsel has specified the following possible issues under Anders to assist us in conducting our independent review of the record: (1) whether Fanelli's sentence was unlawful because section 654 barred the trial court from imposing separate enhancements for using a firearm and inflicting great bodily injury based on the same conduct in a single offense; (2) whether in light of People v. Rodriguez (2009) 47 Cal.4th 501 and People v. Gonzalez (2009) 178 Cal.App.4th 1325 Fanelli's sentence was unlawful when the trial court imposed enhancements for both section 12022.5, subdivision (a), and section 12022.7, subdivision (a); and (3) whether Fanelli's sentence was unlawful because the trial court violated section 1170.1, subdivision (f), by imposing multiple terms for infliction of great bodily injury under sections 12022.7 and 667, subdivision (a)(1), which depended on appellant's conduct of inflicting great bodily injury for the attempted voluntary manslaughter to be a serious felony.
Additionally, we granted Fanelli the opportunity to file a brief on his own behalf and he has done so. It is difficult to discern the precise issues Fanelli intended to raise in his brief, but his contentions appear to be that (1) under section 654, the trial court could impose only one conduct enhancement on his primary offense of attempted voluntary manslaughter; (2) the court erred in imposing the upper term on his conviction of voluntary manslaughter; and (3) the court may strike the prior serious felony enhancement under Senate Bill No. 1393 (2017-208 Reg. Sess.) (S.B. 1393). Fanelli also appears to argue that when the trial court reconsiders a sentence, it may reconsider the entire sentence; thus the trial court could have chosen to sentence him to the midterm instead of the upper term on his primary offense.
The trial court did not violate section 654 in imposing both a firearm enhancement under section 12022.5, subdivision (a), and a great bodily injury enhancement under section 12022.7, subdivision (a), because section 1170.1, subdivisions (f) and (g), specifically allow imposition of both enhancements where a defendant both used a firearm and inflicted great bodily injury in the commission of an offense. (People v. Ahmed (2011) 53 Cal.4th 156, 162-168.)
Fanelli contended in his second appeal (D052636) that the court erred in imposing the upper terms for his attempted voluntary manslaughter conviction and its attendant firearm use enhancement under section 12022.5, subdivision (a). This court rejected that contention and affirmed the judgment. Fanelli presently offers no clear explanation of why the trial court erred in imposing the upper terms on resentencing.
Regarding the court's discretion to strike prior serious felony enhancements under S.B. 1393, that issue was not before the trial court because Fanelli's motion for modification of his sentence did not include a request to strike an enhancement under S.B. 1393.
We have conducted an independent review of the record, including considering the Anders issues identified by appointed appellate counsel and the points raised in Fanelli's supplemental brief. Our review did not disclose any reasonably arguable appellate issues. Fanelli has been competently represented by counsel in this appeal.
DISPOSITION
The August 28, 2019, order denying Fanelli's motion for modification of sentence is affirmed.
IRION, J. WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.