Opinion
H050794
10-12-2023
THE PEOPLE, Plaintiff and Respondent, v. WINGEL ZELAYA CENTENO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C2115835)
Danner, J.
Wingel Zelaya Centeno appeals from an order denying his postjudgment petition for resentencing. Zelaya Centeno's appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Zelaya Centeno filed a supplemental letter brief in this court. We conclude the trial court lacked jurisdiction to resentence Zelaya Centeno, and therefore we lack jurisdiction over his appeal.
I. BACKGROUND
The facts of Zelaya Centeno's offenses are not relevant to this appeal.
On April 20, 2022, Zelaya Centeno pleaded no contest to inflicting corporal injury on a person with whom he previously had a dating relationship (count 1; Pen. Code, § 273.5, subd. (a) ), lewd conduct with a minor 14 or 15 years old (count 5; § 288, subd. (c)(1)), and child endangerment (count 8; § 273a, subd. (a)) pursuant to a plea agreement stipulating to an aggregate sentence of five years eight months in prison. In connection with count 1, he admitted the aggravating circumstance that he was armed and used a weapon when he committed the charged offense. (§ 1170, subd. (b).)
Unspecified statutory references are to the Penal Code.
Zelaya Centeno on the same day pleaded no contest in another case (No. C1914067) to one misdemeanor count of violating Health and Safety Code section 11350, subdivision (a) (possession of cocaine). The plea agreement stipulated that Zelaya Centeno would receive no additional jail time for this offense.
On June 3, 2022, the trial court sentenced Zelaya Centeno to five years eight months in state prison. To reach this sentence, and pursuant to the agreement negotiated by the parties, the court imposed four years on count 8 (the middle term), a consecutive sentence of one year on count 1 (one-third of the middle term), and a consecutive sentence of eight months on count 5 (one-third of the middle term). The court dismissed all remaining charges and enhancements other than the section 1170, subdivision (b) enhancement attached to count 1. The record contains no indication that Zelaya Centeno appealed from this judgment.
At Zelaya Centeno's change-of-plea hearing, the prosecutor articulated these individual sentences for the three counts as the negotiated agreement.
On October 18, 2022, citing "[A]ssembly Bill" Nos. 1618, 518, and 124, Zelaya Centeno moved in propria persona for resentencing (hereafter petition). He requested the "[p]oss[i]bility of a lower [s]entence" in light of the statutory changes made by these bills. Zelaya Centeno asserted he had experienced "[p]sychological, [p]hysical and childhood trauma," including from an uncle who "used to hit him with a belt for no reason."
On January 20, 2023, the trial court issued a written order denying Zelaya Centeno's petition. It noted that Assembly Bill No. 1618 (2019-2020 Reg. Sess.) "added section 1016.8 to the Penal Code." Section 1016.8, subdivision (b) provides that "[a] provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy." However, the trial court found there was "no indication that [Zelaya Centeno]'s plea required him to generally waive future benefits of any changes in the law."
The trial court also observed that Assembly Bill No. 518 (2021-2022 Reg. Sess.) "amended Penal Code section 654 in a way that afforded sentencing courts more discretion. [Citation.] However, [Zelaya Centeno]'s [a]bstract of [j]udgment indicates that Penal Code section 654 was not applicable in his case."
Finally, turning to Assembly Bill No. 124 (2021-2022 Reg. Sess.) (which added section 1170, subdivision (b)(6)(A) to the Penal Code and generally requires the trial court to apply a lower term if the defendant had experienced psychological, physical or childhood trauma that was a contributing factor in the commission of the offense), the trial court rejected its applicability because Zelaya Centeno had "entered into a negotiated disposition with a stipulated sentence."
The trial court's order did not address whether it had jurisdiction to resentence Zelaya Centeno.
On February 7, 2023, Zelaya Centeno filed a notice of appeal from the order denying his petition for resentencing, asserting this court has jurisdiction under section 1237, subdivision (b), "as an appeal from an order after [j]udgment which affects [his] substantial rights." This court appointed counsel to represent Zelaya Centeno.
In this court, Zelaya Centeno's appointed appellate counsel filed a brief pursuant to Delgadillo and Wende. The brief raises no arguable issues for appeal but asks this court to conduct an independent review of the record on appeal.
Regarding appealability, Zelaya Centeno's appellate counsel states the following "This is an appeal from an order after judgment denying a pro per petition to be resentenced to the lower term under Penal Code section 1170, subdivision (b). (But see People v. Littlefield (2018) 24 Cal.App.5th 1086, 1092 ; People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.)" (Fn. omitted.)
After appellate counsel filed the Degadillo/Wende brief, we notified Zelaya Centeno that he could submit a supplemental brief on his own behalf within 30 days. Zelaya Centeno timely filed a supplemental brief. In it, Zelaya Centeno makes arguments regarding resentencing similar to those he made in his petition to the trial court. Zelaya Centeno notes that he is not challenging his conviction and is "only asking if this court would consider a lower term in light of the new changes in the law."
II. DISCUSSION
" '[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun.'" (People v. Turrin, supra, 176 Cal.App.4th 1200, 1204.) There are "limited exceptions to that general principle: (1) When upon its own motion, pursuant to section 1170, subdivision (d), a court recalls a sentence within 120 days after committing a defendant to prison; (2) a court corrects 'a clerical error, but not a judicial error, at any time' with clerical error defined as 'one that is made in recording the judgment'; and (3) the court 'at any time' corrects an unauthorized sentence." (People v. Littlefield, supra, 24 Cal.App.5th 1086, 1089-1090 (Littlefield).) "[U]nauthorized sentences [are] those involving obvious legal error and capable of correcting without reference to factual findings in the record or remanding for further factual findings." (Id. at p. 1090.)
Zelaya Centeno was sentenced on June 3, 2022. Zelaya Centeno had 60 days in which to appeal that judgment (Cal. Rules of Court, rule 8.308(a); People v. Mendez (1999) 19 Cal.4th 1084, 1094), and there is no indication in the record that he did so. The trial court had 120 days in which it could on its own motion recall the sentence. (§ 1170, subd. (d).) That period had lapsed by the time that Zelaya Centeno filed his petition on October 18, 2022. None of the statutory changes Zelaya Centeno cited in his petition as a basis for resentencing themselves give a trial court jurisdiction to resentence outside the 120-day period based on a petition filed by a defendant. (§§ 1016.8, 664, 1237, subd. (b).)
The substance of Zelaya Centeno's petition makes clear that he does not seek correction of a clerical error or an unauthorized sentence. There is no indication in the record that the California Department of Corrections and Rehabilitation has recommended to the trial court that it recall Zelaya Centeno's sentence and resentence him. (See § 1172.75.) On this record, the trial court lacked jurisdiction to grant Zelaya Centeno's petition for resentencing.
A trial court's denial of a petition which the trial court lacked jurisdiction to grant does not affect a defendant's substantial rights and is nonappealable under section 1237, subdivision (b). (See Littlefield, supra, 24 Cal.App.5th at p. 1092.) We must therefore dismiss Zelaya Centeno's appeal from the order denying resentencing. (See People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327.)
III. DISPOSITION
The appeal is dismissed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Bromberg, J.