Opinion
F081017
06-15-2021
THE PEOPLE, Plaintiff and Respondent, v. FREDERICK BROWN, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. SC077348A. Michael G. Bush, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellant Frederick Brown appeals from the trial court's denial of a postjudgment motion to modify the sentence from his 1999 conviction. Brown claimed he was entitled to relief under Assembly Bill No. 1618 (2019-2020 Reg. Sess.).
Appointed counsel for Brown asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) In addition, Brown submitted supplemental letter briefs to this court claiming his prior strike conviction in Kern County Superior Court case No. 34664 incorrectly reflects a conviction for first degree attempted burglary, but he had entered a plea to second degree attempted burglary, a nonstrike offense. As a result of this error, Brown claims he was improperly sentenced as a third-strike offender. For the reasons explained below, we conclude that Brown has appealed from a nonappealable order and thus dismiss this appeal.
BACKGROUND
On November 29, 1998, Brown raped his 18-year old daughter.
On September 8, 1999, a jury found Brown guilty of rape (Pen. Code, § 261, subd. (a)(2), count 1), and incest (§ 285, count 2). Following a bench trial, the court found true two strike convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), two prior serious felony enhancement allegations (§ 667, subd. (a)), and five prior prison term enhancement allegations (§ 667.5, subd. (b).)
All undefined statutory citations are to the Penal Code unless otherwise indicated.
On October 13, 1999, the trial court sentenced Brown to a term of 25 years to life in prison on count 1, two consecutive five-year terms for the prior serious felony enhancements (§ 667, subd. (a)), and three consecutive one-year terms for the prior prison term enhancements (§ 667.5, subd. (b)). The trial court dismissed the remaining two prior prison term enhancements (§ 667.5, subd. (b)). Brown's conviction on count 2 was stayed pursuant to section 654.
On January 31, 2020, acting in propria persona, Brown filed a motion to modify his sentence pursuant to Assembly Bill No. 1618 (2019-2020 Reg. Sess.) (Assembly Bill No. 1618.).
On February 27, 2020, the trial court denied the motion.
On March 26, 2020, Brown filed a timely notice of appeal.
DISCUSSION
Preliminarily, we observe appellate counsel contends Brown filed a motion to “vacate the sentences for the serious felony enhancements.” However, based upon our review of Brown's motion and the supplemental letter briefs he filed with this Court, he seeks modification of his sentence by challenging the strike convictions applied to his sentence, not the prior serious felony enhancements. According to Brown, Assembly Bill No. 1618 renders invalid his pleas in both prior strike cases. Brown further contends his prior strike for attempted first degree burglary in Kern County Superior Court case No. 34664 is invalid as he actually plead to a nonstrike offense, attempted second degree burglary. Neither the record nor the legal authority Brown directs this court to supports his assertions.
Assembly Bill No. 1618, which became effective January 1, 2020, added section 1016.8. (Stats. 2019, ch. 586, § 1.) Under the statute, “[a] provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments... that may retroactively apply after the date of the plea is void as against public policy.” (§ 1016.8, subd. (b).) The record contains no indication that this statute has any bearing upon Brown's prior strike convictions.
Even assuming section 1016.8 somehow applied to Brown's prior convictions, he would not be entitled to any ameliorative benefit because his convictions occurred in 1987 (Kern County Superior Court case No. 34664) and 1993 (Kern County superior court case No. 054714A) and have been final for many years. (See In re Estrada (1965) 63 Cal.2d 740, 745.) For the same reason, to the extent that Brown argues his pleas were not knowingly, voluntarily, and intelligently made, these claims cannot be raised at this juncture.
Insofar as Brown contends his 1987 conviction was actually for a nonstrike offense, attempted second degree burglary (§§ 664, 211), the record does not contain evidence supporting his assertion. Moreover, the proper vehicle for raising such a claim would be by writ of petition for habeas corpus filed in the trial court below. Brown's claim was raised for the first time on appeal from a nonappealable order. As such, it is not properly before this court.
Brown also claims he is entitled to have his conviction for first degree attempted burglary reduced to second degree attempted burglary because he was not present at a resentencing hearing. This claim is also not cognizable.
“ ‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' ” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) An order made after judgment affecting the defendant's substantial rights is appealable (§ 1237, subd. (b)). However, a defendant's “ ‘substantial rights' cannot be affected by an order denying that which he had no right to request.” (People v. Pritchett (1993) 20 Cal.App.4th 190, 194.)
The trial court here did not have jurisdiction to modify Brown's sentence based upon the postjudgment motion he filed. If the trial court lacks jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, requiring dismissal of the appeal. (People v. Torres (2020) 44 Cal.App.5th 1081, 1084.) Under the circumstances, the trial court here lacked jurisdiction to grant relief, and the appeal must be dismissed.
Finding no arguable issues upon this record (Wende, supra, 25 Cal.3d at pp. 441-442), we dismiss the appeal.
DISPOSITION
The appeal is dismissed. [*] Before Poochigian, Acting P.J., Smith, J. and De Santos, J.