Opinion
B300286
03-27-2020
THE PEOPLE, Plaintiff and Respondent, v. VINCENT AUDELO, Defendant and Appellant.
Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA262841) APPEAL from an order of the Superior Court of Los Angeles County, Douglas W. Sortino, Judge. Dismissed. Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Vincent Audelo appeals from an order denying his petition for resentencing under Senate Bill No. 1393. As we explain, the order is not appealable.
In 2005, a jury convicted Audelo of assault with a firearm, discharge of a firearm with gross negligence, and possession of a firearm by a felon, with prior serious felony conviction allegations (Pen. Code, §§ 245, 246.3, former 12021, 667, subds. (a)-(i)). (People v. Audelo (June 26, 2006) B184423 [nonpub. opn.].) The judgment was affirmed on appeal. (Audelo, supra, B184423.)
We take judicial notice of that opinion on our own motion. (Evid. Code, §§ 451, 452.) --------
Over a decade later, Senate Bill No. 1393, which amended Penal Code sections 667 and 1385, became effective in January 2019. (Stats. 2018, ch. 1013, §§ 1, 2.) Per that legislation, trial courts now have discretion to strike enhancements for serious felony convictions. Audelo filed a motion seeking resentencing under that new law. On June 1, 2019, the trial court denied the motion.
Audelo then filed this appeal. After review of the record, his court-appointed counsel filed an opening brief which raised no issues, asking this court to conduct an independent review of the record, under People v. Wende (1979) 25 Cal.3d 436, 441. By letter dated January 15, 2020, we advised Audelo that he had 30 days to submit by brief or letter any contentions or argument he wished this court to consider. Audelo did not submit a brief or letter.
Senate Bill No. 1393 applies to cases not yet final on the date the law became effective. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Audelo's case was final when the time for him to petition the United States Supreme Court for a writ of certiorari expired, which was long before Senate Bill No. 1393 went into effect. (See People v. Harris (2018) 22 Cal.App.5th 657, 659, fn. 2.) The trial court therefore lacked jurisdiction to grant Audelo's resentencing request. (See People v. Johnson (2019) 32 Cal.App.5th 938, 941; People v Fuimaono (2019) 32 Cal.App.5th 132, 135.) As such, Audelo's substantial rights were not affected and the order denying the petition is not appealable; hence, the appeal must be dismissed. (See Fuimaono, at p. 135.)
We are therefore satisfied that Audelo's attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (People v. Kelly (2006) 40 Cal.4th 106, 126; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
LAVIN, Acting P. J.
EGERTON, J.