Opinion
H050609
10-11-2023
THE PEOPLE, Plaintiff and Respondent, v. JULIO PORFIO LEDEZMA, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC789086
Danner, J.
Julio Porfio Ledezma appeals a postjudgment order denying his petition under Penal Code section 1172.75 to strike two prior prison term enhancements (prison priors) imposed pursuant to former section 667.5, subdivision (b) (section 667.5(b)). As the trial court lacked jurisdiction to adjudicate Ledezma's petition, we dismiss the appeal.
Unspecified statutory references are to the Penal Code.
The facts of the underlying cases are not relevant to the legal issues raised in this appeal.
In 2009, in docket No. CC789086 in Santa Clara County Superior Court, Ledezma was convicted by plea of kidnapping (§ 207, subd. (a)), criminal threats (§ 422), theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and possession of a firearm while under the influence of methamphetamine (Health &Saf. Code, § 11550, subd. (e)). Ledezma admitted he personally used a firearm in connection with the kidnapping and criminal threats offenses (§ 12022.5, subd. (a)). Ledezma also admitted two prison priors (former § 667.5(b)).
On April 10, 2009, Ledezma was sentenced to a total term of 11 years, which included two, one-year consecutive terms for prison priors. He received credit of 248 days for time served.
Ledezma was also sentenced on another case, docket No. CC808356, at the same time. That case does not affect the issues before us in this appeal. While Ledezma admitted two prison priors in docket No. CC808356, the court did not impose any punishment for them.
While serving his prison sentence, in 2010 Ledezma was convicted in San Joaquin County of possessing a weapon while confined in a penal institution (§ 4502) for the benefit of, at the direction of, or in association with a gang (§ 186.22, subd. (b)(1)). He was sentenced to prison for seven years, to be served consecutively "to all other sentences." (Capitalization omitted.) The sentence was not increased by a prior prison term enhancement, and Ledezma was not awarded any credit for time served.
In July 2022, while still in custody, Ledezma filed in docket No. CC789086 in Santa Clara County Superior Court a "petition to resentence and to strike legally invalid enhancements" pursuant to section 1172.75. (Capitalization omitted.) He asked the court to "recall his sentence and issue a new sentence of 9 years" after striking the two one-year prison priors. The petition alleged that if the former section 667.5(b) prison priors were stricken by the trial court, he would be eligible for release "this year."
Ledezma requested the court strike the two prison priors imposed in docket No. CC789086 (for which he received two years in prison) and the two prison priors imposed in docket No. CC808356 for which he received no additional prison time.
The district attorney opposed Ledezma's petition, contending he was ineligible for relief under section 1172.75 because he had completed his sentence in the Santa Clara County case no later than August 2019. The district attorney asserted Ledezma was currently in prison solely because of the sentence in his San Joaquin County case, in which no prison priors had been imposed. At the hearing on the petition, Ledezma's counsel acknowledged they were in "uncharted territory" in terms of application of the statute to similar facts. Nevertheless, Ledezma's counsel believed that the California Department of Corrections and Rehabilitation (CDCR) would "credit him out" if the additional time imposed on the prison priors were taken off his sentence. He argued Ledezma should get relief in part on that basis.
On November 2, 2022, the trial court denied the petition, finding that Ledezma had already served his sentence on the prison priors and therefore was ineligible for relief under section 1172.75. On December 1, 2022, Ledezma filed a notice of appeal, asserting this court's appellate jurisdiction over a postjudgment order affecting his substantial rights under sections 1172.75 and 1237, subdivision (b).
In his opening brief in this court, Ledezma contends that the trial court erred in denying him relief because he was still in custody on the judgment for which the prison priors were imposed because the San Joaquin County conviction resulted in a" 'single combined judgment.' " In the alternative, Ledezma asserts that, section 1172.75, subdivision (a) states that a sentence enhancement imposed under former section 667.5(b) is" 'legally invalid,'" and the trial court has "inherent jurisdiction to recalculate the entire sentence." Ledezma maintains that his appeal is distinguishable from People v. Burgess (2022) 86 Cal.App.5th 375 (Burgess), which held that section 1172.75 does not authorize the initiation of a resentencing petition by a prisoner, because the district attorney here had not asserted the trial court lacked jurisdiction. Ledezma requests this court "deem any jurisdictional objection on the grounds raised in Burgess to have been forfeited by the prosecution and decide the matter on its merits."
To the extent that his trial counsel did not articulate the argument in favor of relief in these terms, Ledezma argues trial counsel was constitutionally ineffective for failing to do so.
In his respondent's brief, the Attorney General argues that the trial court did not have jurisdiction to resentence Ledezma, and therefore the court's decision declining to do so is not an appealable order. The Attorney General relies upon Burgess in contending that "[n]othing in section 1172.75 permits a defendant-rather than CDCR- to initiate resentencing proceedings." Moreover, the Attorney General asserts the trial court's lack of jurisdiction over the resentencing request cannot be forfeited or waived. Following his submission of the respondent's brief, the Attorney General informed this court of new authorities, People v. Newell (2023) 93 Cal.App.5th 265 (Newell) and People v. Escobedo (Sept. 12, 2023, B322608) Cal.App.5th (Escobedo) , supporting his contention that the trial court lacked jurisdiction over Ledezma's petition. Ledezma elected not to file a reply brief in this court.
It is not clear from the record whether Ledezma was released on parole during the pendency of this appeal. Both parties agree that, even if true, this fact would not render the appeal moot.
II. DISCUSSION
Section 1172.75 provides in relevant part:
"(a) Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of [s]ection 6600 of the Welfare and Institutions Code is legally invalid.
"(b) The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and shall 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. This information shall be provided as follows:
"(1) By March 1, 2022, for individuals who have served their base term and any other enhancements and are currently serving a sentence based on the enhancement. For purposes of this paragraph, all other enhancements shall be considered to have been served first.
"(2) By July 1, 2022, for all other individuals.
"(c) Upon receiving the information described in subdivision (b), the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant. The review and resentencing shall be completed as follows:
"(1) By October 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement.
"(2) By December 31, 2023, for all other individuals.
"(d)(1) Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed."
In Burgess, the First District Court of Appeal considered a petition for resentencing under section 1172.75 filed by a prisoner who had been sentenced in 2010 to 30 years in prison (including a one-year term on a prison prior), and whose judgment had been final for "many years." (Burgess, supra, 86 Cal.App.5th at p. 382.) Although Burgess was still in custody, he had not yet begun serving his sentence on the prison prior, and CDCR had not identified Burgess to the sentencing court as a person eligible for priority resentencing under the statute. (See id. at pp. 382-384.)
The Court of Appeal acknowledged that Burgess's one-year sentence for his prison prior enhancement pursuant to former section 667.5(b) was legally invalid under the amendments to section 1172.75, subdivision (a). (Burgess, supra, 86 Cal.App.5th at p. 382.) Nevertheless, the court decided that section 1172.75 did not authorize his petition. It reasoned, "the Legislature provided an express system for the orderly implementation of relief for affected defendants to receive the benefit of the amended law in a timely manner. Under this express procedure, any review and verification by the court in advance of resentencing is only triggered by receipt of the necessary information from the CDCR Secretary or a county correctional administrator, not by any individual defendant. (§ 1172.75, subds. (b)-(c).) Thus, section 1172.75 simply does not contemplate resentencing relief initiated by any individual defendant's petition or motion." (Burgess, at p. 384.)
Because Burgess's judgment was final, and because section 1172.75 did not authorize Burgess's petition, "[t]he trial court lacked jurisdiction to adjudicate Burgess's motion for resentencing, and we lack jurisdiction over his appeal from the motion's denial." (Burgess, supra, 86 Cal.App.5th at p. 382.) The Burgess court dismissed Burgess's appeal. (Id. at p. 385.)
In Escobedo, the Second District Court of Appeal considered the applicability of section 1172.75 to petitions filed by two prisoners, Escobedo and Chavira. The procedural history of Chavira's petition closely parallels that of appellant Ledezma.
Chavira had been sentenced in 2015 to a term of six years, four months, including one year for a prison prior under former section 667.5(b). (Escobedo, supra, 2023 WL 5921865, at *3.) In 2016, he was given credit for 449 days of time served. (Ibid.) In 2019, Chavira was convicted of possessing a weapon while confined in a penal institution (§ 4502, subd. (a)) and was sentenced to prison for four years. (Escobedo, at *3.) The 2019 sentence was not increased by a prison prior and was ordered to be served consecutively to the 2016 sentence. (Ibid.) In 2022, Chavira filed a petition for resentencing pursuant to section 1172.75. (Ibid.)
Relying on Burgess, the Second District Court of Appeal decided that the trial court lacked jurisdiction to consider Chavira's petition. (Escobedo, supra, 2023 WL 5921865, at *3.) The Court of Appeal rejected the defendant's contention that the People had waived any jurisdictional defect in the petition procedure."' "Jurisdiction of the subject matter cannot be given, enlarged or waived by the parties ...."' [Citation.]
Appellants' petitions would still have been unauthorized 'freestanding petitions' because 'there was no "ongoing action" to which [they] could attach.' [Citation.] Appellants' convictions had been final for years, and appellants had completed serving the sentences imposed for the convictions. Moreover, there were no' "specific statutory avenues for [appellants] to seek resentencing." '" (Id. at *5.)
Although it dismissed Chavira's appeal for lack of jurisdiction, the Court of Appeal nonetheless addressed the merits of his claim. It decided that Chavira was not eligible for relief under section 1172.75 because "the judgments for the offense[] [he] committed while in prison for the earlier . . . 2016 conviction[] [does] not include a prior prison term enhancement." (Escobedo, supra, 2023 WL 5921865, at *5.) It rejected Chavira's contention that the in-prison conviction combined with the earlier conviction to form a single, aggregate term of imprisonment.
The Escobedo court reasoned," 'It is well settled that under section 1170.1[, subdivision](c), a term for an in-prison offense or multiple in-prison offenses begins to run at the end of the prison term imposed for the original out-of-prison offenses. [Citations.] . . . Thus, "the term for an in-prison offense does not become part of the aggregate prison term imposed for those offenses which were committed 'on the outside.' Instead, the defendant is imprisoned for a total term consisting of the sum of his aggregate sentence computed under section 1170.1[, subdivision](a) plus the new aggregate term imposed under section 1170.1[, subdivision](c). [Citation.] The latter term starts to run at the end of the prison term imposed for the defendant's original 'outside' offense. [Citation.]" [Citations.] [¶] Thus, [the defendant's] consecutive sentence for his . . . in-prison offense is not merged or aggregated with his original term for the . . . out-of-prison offense. Instead, the two terms are treated as separate terms, with the term for the in-prison offense beginning only when [the defendant] completes the term for his out-of-prison offense.'" (Escobedo, supra, 2023 WL 5921865, at *6, quoting In re Tate (2006) 135 Cal.App.4th 756, 764-765.)
Ledezma does not contest the district attorney's assertion that he had completed the eleven-year sentence imposed by the court in Santa Clara County when he filed his petition. Therefore, Ledezma was not "currently serving a term for a judgment that includes an enhancement" imposed prior to January 1, 2020, pursuant to subdivision 667.5(a)" when he filed his petition. (See § 1172.75, subd. (b).) There is no evidence in the record that CDCR had provided any information about Ledezma to the Santa Clara County Superior Court under section 1172.75.
We agree with the Courts of Appeal in Burgess and Escobedo that on these facts the trial court lacked jurisdiction over Ledezma's petition. As the trial court lacked jurisdiction to resentence Ledezma based on his petition, we must dismiss his appeal from the order denying resentencing. (See People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327; Newell, supra, 93 Cal.App.5th at pp. 268-269.)
III. DISPOSITION
The appeal is dismissed.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Bromberg, J.