Opinion
B297970
07-08-2020
THE PEOPLE, Plaintiff and Respondent, v. RALPH N. CANETE, Defendant and Appellant.
Karyn H. Bucur, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. SA071133 APPEAL from an order of the Superior Court of Los Angeles County, Upinder S. Kalra, Judge. Affirmed. Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
BACKGROUND
In 2011, a jury convicted defendant and appellant Ralph N. Canete of robbery (Pen. Code, § 211) and access card theft (§ 484e, subd. (d)). The trial court sentenced Canete to 19 years and four months in state prison. On count one, the court sentenced him to an upper term of five years, doubled to ten years as a second strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), plus a three-year enhancement under section 12022.7, subdivision (a), and a five-year prior serious felony conviction enhancement (§ 667, subd. (a)(1)). The court's sentence on count two consisted of a base term of eight months (one-third of the two-year middle term), doubled to 16 months under the Three Strikes law. On direct appeal from that judgment, this Court, in case number B234197, reversed Canete's sentence on count two and directed the trial court to stay sentencing on that count pursuant to section 654.
All undesignated statutory references are to the Penal Code.
We take judicial notice of our 2013 opinion resolving Canete's appeal in case number B234197. (Evid. Code, § 452, subd. (d)(1).)
In 2019, Canete filed a motion in the trial court to recall his sentence and strike his prior serious felony enhancement in light of Senate Bill No. 1393. In his motion, Canete argued the change in the law applied to him retroactively because his sentence was not final when Senate Bill No. 1393 took effect on January 1, 2019. On January 23, 2019, the trial court denied Canete's motion. The court explained Canete's case was final in 2013, and the "amended section does not create an independent right to resentencing for judgments that were final prior to January 1, 2019." The court rejected Canete's argument that his case was not yet final when Senate Bill No. 1393 went into effect because Canete was in the process of collaterally attacking his conviction in federal court through writ of habeas corpus.
Effective January 1, 2019, Senate Bill No. 1393 amended Penal Code sections 667 and 1385 to give trial courts the discretion to dismiss, in the interest of justice, five-year prior serious felony enhancements under section 667, subdivision (a)(1). (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)
Canete filed a timely notice of appeal, and we appointed counsel to represent him. On February 11, 2020, appellate counsel filed a brief raising no issues and asking us to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We informed Canete that he could personally submit any contentions or issues for us to consider, and he filed a supplemental brief on March 10, 2020.
Although we initially dismissed Canete's appeal because it appeared his notice of appeal was untimely, we later vacated that dismissal and reinstated the appeal after Canete submitted materials showing his notice of appeal was timely under the prison-delivery rule. (See In re Jordan (1992) 4 Cal.4th 116, 118-119 [a prisoner's notice of appeal is deemed timely filed if delivered to prison authorities within the 60-day filing period set forth in rule 8.308, subdivision (a) of the California Rules of Court].) --------
DISCUSSION
In his supplemental brief, Canete again argues that because he had mounted a collateral attack to his state court judgment through federal writ of habeas corpus, and because this collateral attack was still pending in federal court when Senate Bill No. 1393 went into effect, the new law should apply to him retroactively. We reject this argument. The trial court was correct in concluding Senate Bill No. 1393 does not apply retroactively to Canete because his case became final in 2013.
It is true that Senate Bill No. 1393 would apply retroactively to Canete if his direct appeal had not yet been final when the new law took effect. (See Garcia, supra, 28 Cal.App.5th at p. 973.) Canete is incorrect, however, in his assertion that his case was not final when the new law took effect. "The finality of a judgment has been defined as that point at which the courts can no longer provide a remedy on direct review." (In re Pine (1977) 66 Cal.App.3d 593, 595.) Here, judgment was initially entered on June 28, 2011. On March 25, 2013, we reversed Canete's sentence and remanded the case to the trial court with instructions to stay sentencing on count two. We affirmed the judgment in all other respects. On June 5, 2013, the trial court resentenced Canete in a manner consistent with our instructions. Canete did not appeal that judgment. The judgment became final on July 6, 2013, after 60 days passed from the rendition of judgment without Canete filing a notice of appeal. (See Cal. Rules of Court, rule 8.308 (a).) Because Canete's judgment became final in 2013, Senate Bill No. 1393, which went into effect January 1, 2019, does not apply retroactively to him.
In addition to reviewing the issues Canete has raised in his supplemental brief, we have also independently examined the entire record, and are satisfied no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 278-279; Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. We concur: WILLHITE, Acting P.J. COLLINS, J.