Opinion
A169283
09-13-2024
THE PEOPLE, Plaintiff and Respondent, v. STEVE BADUE, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. Nos. 23-SF-011708-A, 20-SF-010783-A
TUCHER, P.J.
Defendant Steve Badue appeals orders of the trial court denying his requests for resentencing. His counsel has filed a brief raising no issues and asking this court for an independent review of the record, citing People v. Wende (1979) 25 Cal.3d 436. Defendant was informed of his right personally to file a supplemental brief, but he has not done so.
This is not an initial appeal of a judgment. In People v. Delgadillo (2022) 14 Cal.5th 216, 221-222, our high court held that an appellate court is obligated to conduct a Wende-style review only when an appellant is pursuing a first appeal as of right. It thus does not appear defendant is entitled to our independent review of the record. Nevertheless, because defendant was not notified that his appeal would be dismissed as abandoned if he did not file a supplemental brief, we elect to conduct an independent review. (See Delgadillo, at p. 222.)
The Criminal Case
In case number 20-SF-010783-A (the criminal case), defendant was found guilty on February 16, 2021 of misdemeanor public intoxication (Pen. Code, § 647, subd. (f)); misdemeanor delaying or resisting an officer (§ 148, subd. (a)(1)); misdemeanor battery on a peace officer (§ 243, subd. (b)); two counts of resisting an executive officer in the performance of the officer's duties (§ 69), with a great bodily injury enhancement as to one count (§§ 1203, subd. (e)(3), 12022.7, subd. (a)); and resisting and causing serious bodily injury to a peace officer (§ 148.10, subd. (a)). On May 20 2021, the trial court sentenced defendant to the lower term of two years for resisting a peace officer (§ 148.10), with the other terms concurrent or stayed.
All statutory references are to the Penal Code.
We affirmed the judgment on November 15, 2022. (People v. Badue (Nov. 15, 2022, A162813) [nonpub. opn.].)
Parole Revocation Proceedings
Defendant was released on parole on June 27, 2023. On July 14, 2023, the Redwood City Parole Unit filed a petition to revoke his parole on the ground he failed to report to his parole officer after his release. The case number assigned to the petition was 23-SF-011708-A (the parole case).
A hearing took place on August 11, 2023, and the trial court reinstated parole with modified conditions, including 180 days in jail.
On October 2, 2023, defendant filed a notice of appeal of the August 11, 2023 order in the parole case. That appeal is currently pending in this court. (People v. Badue (A168953, app. pending).)
Petitions for Resentencing
Defendant filed pro per motions for resentencing in both the parole and the criminal cases. In the parole case, the petition was filed on September 1, 2023, and in the criminal case, petitions were filed on September 6 and October 3, 2023. The petitions were based on two statutory provisions. The first is section 1172.1, subdivision (a), which authorizes a court to recall a sentence either within 120 days of a commitment on its own motion, or "at any time" if applicable sentencing laws are changed or upon the recommendation of certain governmental authorities. The second provision is section 1172.75, subdivision (a), which declares legally invalid certain sentence enhancements imposed under section 667.5, subdivision (b), for prior prison terms. Defendant also raised objections to the parole requirement that he wear a global positioning system monitoring device.
The hearing on the petitions took place on November 7, 2023. The prosecutor argued the trial court did not have jurisdiction to resentence defendant because more than 120 days had passed since his original sentencing and because the sentence did not include a prior prison term enhancement.
The trial court agreed that it lacked jurisdiction to resentence defendant, both because sentencing had taken place more than 120 days previously and because defendant had filed a notice of appeal of the order regarding defendant's parole.
There are no meritorious issues to be argued.
DISPOSITION
The orders are affirmed.
WE CONCUR: FUJISAKI, J. RODRIGUEZ, J.