Opinion
B323211
04-23-2024
THE PEOPLE, Plaintiff and Respondent, v. MAXIMO GONZALES ESTRADA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Los Angeles County Super. Ct. No. KA020112)
THE COURT:
Maximo Estrada appeals the order of the superior court summarily denying his petition for resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728), which invalidated prior prison term enhancements (Pen. Code, § 667.5, former subd. (b)), except for any such enhancement imposed for a sexually violent offense (§ 1172.75, subd. (a)). We appointed counsel to represent Estrada on appeal. After examination of the record, counsel filed an opening brief raising no issues and requesting that we exercise our discretion to independently review the record for arguable issues pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, 228-232 (Delgadillo). Estrada filed a supplemental brief in which he requests relief from his state prison sentence of life without the possibility of parole, which he has been serving since 1994.
Undesignated statutory references are to the Penal Code.
We dismiss the appeal. Once judgment in a criminal case is rendered and execution of the sentence begins, trial courts generally lack jurisdiction to vacate or modify the sentence. (People v. King (2022) 77 Cal.App.5th 629, 634 (King).) Nothing in Estrada's supplemental brief alters this conclusion or entitles him to relief under section 1172.75.
PROCEDURAL BACKGROUND
Estrada was convicted by jury in 1994 of two counts of kidnapping for robbery (§ 209, subd. (b), counts 1 and 2), two counts of robbery (§ 211, counts 3 and 4), two counts of assault with great bodily injury (§ 245, subd. (a)(1), counts 5 and 6), and one count of attempt to burn (§ 455, count 7). The allegation that Estrada had used a deadly weapon in the commission of the offenses was found true. (§ 12022, subd. (b).) A 1991 robbery conviction alleged as a prior serious felony conviction (§ 667, subd. (a)) and a prior prison term (§ 667.5, former subd. (b)) was also found true. The trial court sentenced Estrada to two consecutive life terms without the possibility of parole for the two kidnapping counts, plus six years, consisting of one year for the deadly weapon enhancement (§ 12022, subd. (b)) and five years for the prior serious felony conviction enhancement (§ 667, subd. (a)). The court imposed a concurrent determinate sentence for count 7, and stayed the sentences on the remaining counts of conviction as well as the one-year prior prison term enhancement. (§ 667.5, former subd. (b).)
On July 22, 2022, Estrada filed a petition for resentencing pursuant to Senate Bill No. 483. (§ 1172.75.) The superior court summarily denied the petition on the ground that Estrada had no" 'standing'" to bring the petition.
Because the instant appeal is not from his conviction, Estrada is not entitled to our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738. (Delgadillo, supra, 14 Cal.5th at p. 226 ["the procedures set out in Anders and Wende do not apply to an appeal from the denial of postconviction relief"]; People v. Kelly (2006) 40 Cal.4th 106, 119 [independent judicial review mandated by Anders applies only to first appeal as of right]; see also Pennsylvania v. Finley (1987) 481 U.S. 551, 559.) However, although "[t]he filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues," we are required to address the contentions Estrada raises in his supplemental brief. (Delgadillo, supra, 14 Cal.5th at p. 232 ["the Court of Appeal is required to evaluate the specific arguments presented in [the supplemental] brief and to issue a written opinion"].)
DISCUSSION
Previously, section 667.5, subdivision (b) required the imposition of a one-year enhancement for each true finding of a separate prior prison or county jail term the defendant had served, unless the defendant remained free of custody for at least five years. (§ 667.5, former subd. (b); People v. Escobedo (2023) 95 Cal.App.5th 440, 445 (Escobedo); People v. Jennings (2019) 42 Cal.App.5th 664, 681.) However, with the enactment of Senate Bill No. 136 (2018-2019 Reg. Sess., effective Jan. 1, 2020), the Legislature amended subdivision (b) of section 667.5 to impose a one-year enhancement only for each prior term served for a conviction of a sexually violent offense. (Stats. 2019, ch. 590, § 1; People v. Burgess (2022) 86 Cal.App.5th 375, 380 (Burgess).) By adding section 1171.1 (effective Jan. 1, 2022), the Legislature made the change retroactive, declaring 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." (Former § 1171.1, subd. (a), added by Stats. 2021, ch. 728, § 3, now § 1172.75, subd. (a); Burgess, at p. 380; Escobedo, at p. 445.)
Section 1171.1 was later amended and renumbered as section 1172.75. (Stats. 2022, ch. 58, § 12.)
Section 1172.75 further established "a mechanism to provide affected defendants a remedy for those legally invalid enhancements." (Burgess, supra, 86 Cal.App.5th at p. 380.) This procedure requires the Department of Corrections and Rehabilitation (CDCR) to identify any eligible inmates, and upon verifying that the judgment includes a now-invalid prior prison term enhancement, the superior court is obligated to resentence those individuals in accordance with a defined schedule. (§ 1172.75, subds. (b) &(c); Burgess, at pp. 380-381.) Unlike some resentencing statutes, however, section 1172.75 does not provide "resentencing relief initiated by any individual defendant's petition or motion." (Burgess, at p. 384.) Rather, the statute expressly provides that "any review and verification by the court in advance of resentencing is only triggered by receipt of the necessary information from the CDCR Secretary or a county correctional administrator, not by any individual defendant. (§ 1172.75, subds. (b)-(c).)" (Burgess, at p. 384; Escobedo, at pp. 447-448.)
Estrada's petition challenging his sentence under section 1172.75 comes nearly 30 years after the judgment was final and he had begun serving his sentence. There is nothing in the record to suggest the CDCR has identified Estrada as an inmate who qualifies for relief under section 1172.75.
" '[A] "freestanding motion [or petition] challenging an incarcerated defendant's sentence is not a proper procedural mechanism to seek relief. A motion [or petition] is not an independent remedy, but must be attached to some ongoing action." '" (Escobedo, supra, 95 Cal.App.5th at p. 448; Burgess, supra, 86 Cal.App.5th at p. 381; King, supra, 77 Cal.App.5th at p. 640.) Here, there was no "ongoing action" to which Estrada's petition could attach. (Escobedo, at p. 448.) Hence, the superior court lacked jurisdiction to adjudicate Estrada's petition. (Burgess, at p. 382.) And because the superior court lacked jurisdiction, its order denying Estrada's petition is nonappealable. (Id. at pp. 381-382; see also King, supra, 77 Cal.App.5th at p. 633 ["Although King correctly contends that the sentence on [his] conviction . . . was unauthorized, we conclude that the trial court had no jurisdiction to entertain King's motion to vacate his sentence, and therefore this court has no appellate jurisdiction to entertain the appeal"]; People v. Torres (2020) 44 Cal.App.5th 1081, 1084 ["If the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed"].)
Without a statutory or other avenue to recall the sentence, the superior court lacked jurisdiction to hear Estrada's petition, and we lack jurisdiction to hear the appeal.
In his supplemental brief, Estrada does not address the fundamental jurisdictional issue presented in this case, but implores this court to order his release from prison after serving 30 years of his sentence. We have no authority to do as Estrada asks, and having no jurisdiction to consider the appeal, we can only dismiss it.
DISPOSITION
The appeal is dismissed.
LUI, P. J. ASHMANN-GERST, J., HOFFSTADT, J.