Opinion
E072925
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. JESSE JOE CHAVARRIA, Defendant and Appellant.
Jesse Joe Chavarria, in pro. per.; Gregory L. Cannon, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1503096) OPINION APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed. Jesse Joe Chavarria, in pro. per.; Gregory L. Cannon, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
PROCEDURAL HISTORY
The record contains no facts regarding the crime(s) in this matter and defendant asserts that "[b]ecause appellant's conviction was by plea and was accompanied by a waiver of probation report, the facts in the underlying matter were never litigated. Nor are those facts relevant in any case, as [Penal Code] section 1170.91 addresses sentencing factors rather than the facts underlying a defendant's conviction." --------
On September 24, 2015, an information charged defendant and appellant Jesse Joe Chavarria with attempted murder under Penal Code sections 664 and 187, subdivision (a) (count 1); assault on a peace officer or firefighter under Penal Code section 245, subdivision (c) (count 2); resisting an officer by force or violence under Penal Code section 69 (count 3); and carrying a loaded firearm he knew or reasonably should have known was stolen under Penal Code section 25850, subdivisions (a), and (c)(2) (count 4). The information also alleged that defendant personally inflicted great bodily injury on the victim in the commission of count 1, causing the victim to become comatose and to suffer paralysis under Penal Code section 12022.7, subdivision (b). Moreover, the information alleged that a principal in the commission of count 1 used and discharged a firearm in the commission of count 1, causing death or great bodily injury to the victim under Penal Code section 12022.53, subdivisions (b), (c), (d), and (e)(1). The information further alleged that a principal was armed with a firearm in the commission of counts 2 and 3 under Penal Code section 12022, subdivision (a)(1).
On July 3, 2018, the People amended the allegation that defendant personally inflicted great bodily injury on the victim in the commission of count 1 from subdivision (b) of Penal Code section 12022.7, to subdivision (a). Thereafter, pursuant to a plea agreement, defendant pled guilty to count 1 (Pen. Code, §§ 664 and 187, subd. (a)) and admitted both that (1) he personally used a firearm in the commission of count 1 under Penal Code section 12022.53, subdivision (b); and (2) he personally inflicted great bodily injury on the victim under Penal Code section 12022.7, subdivision (a). The court dismissed the remaining counts and allegations.
Defendant waived his right to a probation report and requested immediate sentencing. The trial court denied probation and sentenced defendant according to the terms of the plea agreement. The court imposed an aggregate term of 22 years in state prison, comprised as follows: aggravated term of nine years on count 1, with a consecutive 10-year enhancement under Penal Code section 12022.53, subdivision (b), and a consecutive three-year enhancement under Penal Code section 12022.7, subdivision (a). The trial court also imposed a concurrent five-year term in a second case, San Bernardino case No. 16CR039580, in which defendant pled guilty to shooting at an inhabited dwelling.
On May 9, 2019, defendant filed a motion for resentencing in this case, case No. FSB1503090, under Penal Code section 1170.91. In the motion, defendant declared that he was eligible for resentencing because he is a veteran of the United States Army and had served two combat tours of duty in Afghanistan. Defendant declared that, at the time of initial sentencing, he was suffering from posttraumatic stress disorder, substance abuse, and mental health problems as a result of his military service. Defendant averred that those mitigating factors were not considered at the time of his sentencing.
On May 13, 2019, the trial court summarily denied defendant's motion by written order. The court found that defendant was ineligible for resentencing because he was sentenced pursuant to a plea agreement. The court held that defendant had received the benefit of the plea bargain. Therefore, defendant was required to abide by the agreement.
On June 3, 2019, defendant filed a motion for reconsideration. On June 4, 2019, the trial court treated defendant's motion as a notice of appeal and directed the clerk to prepare the record on appeal.
DISCUSSION
After defendant's motion for reconsideration was deemed to be a notice of appeal, this court appointed counsel to represent defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error: Did the trial court err by denying the motion for resentencing under Penal Code section 1170.91?
We offered defendant an opportunity to file a personal supplemental brief. Defendant filed a two-page supplemental brief with attached exhibits. In his brief, defendant argues that the trial court erred in denying his motion because under Penal Code section 1170.01, subdivision (b)(1), a motion for resentencing can be filed by "[a] person currently servicing a sentence for a felony conviction, whether by trial or plea." On a copy of two pages of the Legislative Counsel's Digest that defendant attached to his brief, defendant wrote: "ACCORDING TO THE TEXT THE FACT THAT I TOOK A PLEA DOES NOT DISQUALIFY ME FROM THE BENIFIT [sic] OF BEING RESENTENCED UNDER THE REVISION OF THIS LAW. 1170.91(b)1." Although we agree that a person who is currently serving a sentence by a plea agreement may file a motion under Penal Code section 1170.91, that section also requires that defendant meet two conditions. Defendant fails to meet one of the mandated conditions. Under Penal Code section 1170.91, subdivision (b)(1)(B), defendant must have been "sentenced prior to January 1, 2015." In this case, defendant was sentenced on July 3, 2018. Therefore, defendant fails to meet the criteria under Penal Code section 1170.91, subdivision (b)(1).
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.