Opinion
G063439
10-31-2024
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS BUENROSTRO, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 18WF2192 Thomas A. Glazier, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
We appointed counsel to represent Jorge Luis Buenrostro on appeal from the denial of his petition under Penal Code section 1172.75. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Buenrostro's behalf.
All further statutory references are to the Penal Code.
The procedures set forth in People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, do not apply to appeals from the denial of postconviction section 1172.75 petitions. (People v. Delgadillo (2022) 14 Cal.5th 216, 226, 227 (Delgadillo).) Therefore, when appointed appellate counsel finds no viable issues, counsel must file a brief informing the court that counsel found no arguable issues and include a concise narration of facts. (Id. at p. 231.) The reviewing court must send the brief to the defendant with notice that the defendant may file a supplemental brief or letter within 30 days. (Id. at pp. 231-232.)
Buenrostro did not file a supplemental brief or letter. We have independently reviewed the record and found no arguable issues on appeal. We affirm the postjudgment order.
FACTS
In 2018, Buenrostro pleaded guilty to carrying a loaded firearm with a prior felony conviction. (§ 25850, subds. (a) &(c)(1).) Buenrostro also admitted that: he committed the crime for the benefit of a gang (§ 186.22, subd. (b)(1)), had previously been convicted of a serious and/or violent felony (§ 667, subds. (d) &(e)(2)(A)), and had served a prior prison term and not remained free of custody for at least five years at the time he carried the firearm (former § 667.5, subd. (b)). The trial court accepted Buenrostro's plea and sentenced him to a total prison term of seven years by doubling the upper term of three years-based on prior strikes for the firearm violation- and imposing a one-year sentence enhancement based on former section 667.5, subdivision (b).
In 2023, Buenrostro filed the underlying petition for resentencing based on postconviction legislation discussed below. The trial court appointed counsel for Buenrostro and conducted a hearing in November 2023, after reviewing briefs submitted by the parties. The court denied Buenrostro's request to be resentenced to a four-year prison term and resentenced him to a total of six years by doubling the three-year upper term for the firearm violation (§ 25850, subds. (a) &(c)(1)) based on his prior serious and/or violent felony (§ 667, subds. (d) &(e)(1); 1170.12, subds. (b) &(c)(1)).
DISCUSSION
Before 2020, trial courts were required to "impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years." (People v. Burgess (2022) 86 Cal.App.5th 375, 379380.) "Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590) . . . amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. [Citations.] Enhancements based on prior prison terms served for other offenses became legally invalid." (Id. at p. 380.)
In 2021, the enactment of Senate Bill No. 483 (2021-2022 Reg. Sess.) made the changes implemented by Senate Bill No. 136 (2019-2020 Reg. Sess.) retroactive. (People v. Burgess, supra, 86 Cal.App.5th at p. 380.)
Senate Bill No. 483 also added what is now section 1172.75 (previously numbered 1171.1), which made invalid "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense." (§ 1172.75, subd. (a); Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.)
Section 1172.75 provides a mechanism for resentencing individuals serving judgments that include sentence enhancements imposed under former section 667.5, subdivision (b). Section 1172.75, subdivision (d) sets the parameters of trial court discretion for resentencing. For example, the court must impose a "lesser sentence than the one originally imposed," absent "clear and convincing evidence that imposing a lesser sentence would endanger public safety." (§ 1172.75, subd. (d)(1).) As another example, the court "may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation" in exercising its discretion. (§ 1172.75, subd. (d)(3).)
We have reviewed whether the trial court erred when it resentenced Buenrostro to a prison term of six years and discern no error. The court appointed counsel, considered appropriate postconviction factors, and applied valid sentencing rules in rendering its decision. (E.g., § 1170.12, subd. (c)(1) ["prior serious or violent felony conviction" requires doubling of underlying term].)
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: MOTOIKE, J., DELANEY, J.