Opinion
E079095
04-04-2023
THE PEOPLE, Plaintiff and Respondent, v. DOMINIC MICHAEL CONGIARDO, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman, Warren J. Williams and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF121365, John D. Molloy, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman, Warren J. Williams and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER Acting P. J.
In 2007, defendant and appellant Dominic Michael Congiardo was convicted of attempted first degree murder, assault with a deadly weapon likely to produce great bodily injury, and first degree burglary for stabbing a man after entering the man's house. Defendant was found to have suffered several prior convictions, including having served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).Defendant was sentenced to 33 years to life in state prison. Defendant appealed, and in an unpublished opinion filed on August 20, 2008, this court affirmed his convictions but reduced his sentence to 25 years to life (People v. Congiardo (Aug. 20, 2008, E044452) [nonpub. opn.]; hereafter, Opinion).
All further statutory references are to the Penal Code unless otherwise indicated.
On January 10, 2022, defendant filed a petition for resentencing pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Penal Code section 1170.95 (petition) insisting his attempted murder conviction was invalid pursuant to the definitions in sections 188 and 189 effective January 1, 2019. The petition was summarily denied by the trial court without a hearing.
Section 1170.95 was renumbered effective June 30, 2022, to section 1172.6. (Stats. 2022, c. 58 (A.B. 200), § 100, eff. June 30, 2022.) We will refer to the new numbering and current version in this opinion.
Defendant has filed this appeal from the denial of his section 1172.6 petition but does not claim that the trial court erred by denying his petition. Defendant claims in this appeal that his two prior convictions found true pursuant to section 667.5, subdivision (b), are invalid, his sentence should be vacated and the matter be remanded for resentencing pursuant to the expressly retroactive ameliorative provisions of Senate Bill No. 483 (Stats. 2021, ch. 728, § 23), which invalidated all prison prior terms imposed before 2020. The People originally conceded that defendant could raise this issue in this appeal, agreed that the two prior prison terms should be stricken and that the matter should be remanded for resentencing. This court ordered supplemental briefing inquiring whether this court had jurisdiction to vacate defendant's section 667.5, subdivision (b), priors in an appeal from the denial of a section 1172.6 petition. Defendant insists that his unauthorized sentence can be corrected at any time it comes to the attention of the court. The People contend, upon further consideration, that this court lacks the jurisdiction to grant such relief through the instant appeal. This court finds that we lack jurisdiction to vacate defendant's section 667.5, subdivision (b), priors on appeal and will affirm the denial of his section 1172.6 petition.
FACTUAL AND PROCEDURAL HISTORY
A brief summary of the facts is taken from the Opinion.
The victim, who lived in an apartment in Moreno Valley, was getting ready for bed around 11:30 p.m. on June 10, 2005, when someone banged on his door. Not expecting anyone, the victim grabbed a pocketknife and answered the door. Defendant asked the victim if he was selling "weed" but the victim told him he must have the wrong apartment. Defendant asked the victim if he was dating a girl named Tina, who was the victim's estranged wife. Defendant lunged at the victim and punched him in the face with a knife he had in his hand. Defendant stabbed the victim in the shoulder and the blade broke off in the victim's shoulder. The victim stabbed defendant with his pocketknife and defendant fled. When police arrived, the victim was covered in blood from head to toe. As a result of the stabbing, part of the victim's earlobe was cut off, his face was cut and he had to receive numerous stitches. Defendant claimed he stabbed the victim in self-defense.
B. PROCEDURAL HISTORY
Defendant was convicted of attempted first degree murder (§§ 664, 187, subd. (a); count 1); assault with a deadly weapon likely to produce great bodily injury (§ 245, subd. (a)(1) ; count 2); and first degree burglary (§ 459; count 3). In addition, for count 1, the jury found true that defendant personally and intentionally used a weapon and inflicted great bodily injury in the commission of the attempted murder. (§§ 12022.7, subd. (a), 12022, subd. (b)(1).) The trial court found true that defendant had served two prior prison terms (§ 667.5, subd. (b)) and had suffered two prior serious felony convictions (§ 667, subd. (a)). Defendant was sentenced to 33 years to life on September 7, 2007, which included two years for the section 667.5, subdivision (b), prior-prison-term convictions.
In 2012, after defendant was convicted, section 245, subdivision (a)(1), was amended to delete the language that assault with a deadly weapon under that subdivision included assault likely to cause great bodily injury and added subdivision (a)(4) which now provides for assault likely to cause great bodily injury.
On January 10, 2022, defendant filed the petition. He claimed he was convicted under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on the person's participation in a crime, or attempted murder under the natural and probable consequences doctrine. He contended he could not presently be convicted of murder or attempted murder because of the changes to sections 188 and 189 effective January 1, 2019. Defendant was appointed counsel. The petition was denied without a hearing on May 27, 2022. Defendant filed a notice of appeal from the May 27, 2022, order, appealing the "[d]enial of 1437 petition."
DISCUSSION
Defendant contends his two prior-prison-term convictions pursuant to section 667.5, subdivision (b), must be stricken by this court and he is entitled to a full resentencing. Defendant insists that this court has jurisdiction to review this claim despite the appeal being from the denial of a section 1172.6 petition, and not an appeal from the sentence because an unauthorized sentence can be corrected at any time. The People insist that this court does not have jurisdiction to review this claim and the appeal should be dismissed.
At the time the trial court sentenced defendant in 2007, section 667.5, subdivision (b), required trial courts 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 from custody for at least five years. (Former § 667.5, subd. (b).) Senate Bill No. 483 added section 1171.1 to the Penal Code, effective June 30, 2022, which has since been renumbered to section 1172.75. Section 1172.75, subdivision (a), provides that "[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 . . . is legally invalid." (§ 1172.75, subd. (a).) Subdivision (b) of section 1172.75 puts the onus on the California Department of Corrections and Rehabilitation to identify those persons "currently serving a term for a judgment that includes an enhancement described in subdivision (a)" and to notify the sentencing court that imposed the enhancement. "If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).)
The resentencing "shall result in a lesser sentence than the one originally imposed . . . unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed." (§ 1172.75, subd. (d)(1).) In resentencing, "[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).) "The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (§ 1172.75, subd. (d)(3).) The court "shall appoint counsel" for the resentencing. (§ 1172.75, subd. (d)(5).)
In In re G.C. (2020) 8 Cal.5th 1119, the California Supreme Court clarified that the longstanding rule an unauthorized sentence can be corrected at any time is an exception to the waiver doctrine, but not to the rule that the court must first have jurisdiction. (Id. at p. 1129.)" '[O]nce a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence.'" (People v. King (2022) 77 Cal.App.5th 629, 634.)
The instant case is akin to People v. Moore (2021) 68 Cal.App.5th 856. In Moore, the defendant was convicted of murder and other crimes in 1997 and was sentenced to 107 years to life in state prison. He filed a petition in 2020 to be considered for a youth offender evidence preservation proceeding in accordance with People v. Franklin (2016) 63 Cal.4th 261. The request was denied, and defendant appealed the denial of the petition. (Moore, at p. 860.) On appeal, the defendant, for the first time, challenged his sentence contending that the imposition of a five-year enhancement pursuant to section 667, subdivision (a), was unauthorized "because the prosecution did not comply with the pleading and proof requirements of section 1170.1, subdivision (e)." (Moore, at p. 865, fn. omitted.) The appellate court, after reviewing In re G.C., held "Not only is appellant attempting to challenge his sentence more than 20 years after his judgment of conviction became final, but he is doing so for the first time on appeal from the denial of his request for a Franklin proceeding. A Franklin proceeding, however, 'is unrelated to the validity of the defendant's sentence. Neither the entitlement to a youth offender parole hearing, nor the evidence preservation process "disturb[s] the finality of state convictions."' [Citation.] By the same token, the trial court's denial of appellant's petition for a Franklin proceeding and his appeal from that denial did not confer jurisdiction on this court over the judgment. The unauthorized sentence doctrine has no application here, and we have no jurisdiction to consider appellant's challenge to his sentence in this appeal." (Id. at p. 866.)
Here, defendant filed his petition seeking to overturn his murder conviction pursuant to the changes to sections 188 and 189. His petition was denied. On appeal, for the first time, defendant claims that his sentence is unauthorized based on Senate Bill No. 483, which requires this court to strike his prior-prison-term convictions that were imposed prior to 2020. Like in Moore, this court has no jurisdiction to hear this claim because we have no jurisdiction to consider his sentence in this appeal. Defendant's filing of the petition did not "confer jurisdiction on this court over the judgment." (People v. Moore, supra, 68 Cal.App.4th at p. 866.)
Moreover, the fact that the request here is based on a change in the law, and not due to an error in sentencing at the time of disposition, does not confer jurisdiction on this court."' "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. Hernandez (2019) 34 Cal.App.5th 323, 326.) "[S]ection 1172.75 simply does not contemplate resentencing relief initiated by any individual defendant's petition or motion." (People v. Burgess (2022) 86 Cal.App.5th 375, 384.)
Subdivision (b) of section 1172.75 obligates the Secretary of the Department of Corrections and Rehabilitation to forward information on which defendants might be eligible for relief by July 1, 2022, and subdivision (c) obligates the sentencing court to conduct its review and any resentencing by December 31, 2023. (§ 1172.75, subds. (b) & (c)(2).) "[T]he Legislature [has] provided an express system for the orderly implementation of relief for affected defendants to receive the benefit of the amended law in a timely manner." (People v. Burgess, supra, 86 Cal.App.5th at p. 384.)
Section 1172.75 does not provide for correction of the sentence based on a petition or motion filed by the defendant. That provision provides for its own remedy initiated by the California Department of Corrections and judgment rendered by the trial court. This court cannot address the issue for the first time on appeal even if we could consider defendant to have filed such a petition or motion. For the same reason, we decline to treat defendant's appeal as a petition for writ of habeas corpus. The law provides for a specific remedy, which will be afforded to defendant. (In re Cook (2019) 7 Cal.5th 439, 452 ["resort[ing] to habeas corpus [was] unnecessary" as the defendant had "a plain, speedy, and adequate remedy at law"].)
The denial of defendant's 1172.6 petition is an appealable order but defendant has not raised any issue that such determination was erroneous. Accordingly, the appropriate disposition is to affirm the denial of the section 1172.6 petition.
DISPOSITION
The denial of defendant's petition under section 1172.6 is affirmed.
We concur: FIELDS J. MENETREZ, J.