Opinion
E081395
10-09-2023
THE PEOPLE, Plaintiff and Respondent, v. DAVID DION GARCIA, Defendant and Appellant.
David Dion Garcia, in pro. per.; Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FMB900221. J. David Mazurek, Judge.
David Dion Garcia, in pro. per.; Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
Defendant and appellant David Dion Garcia filed a motion for modification of sentence pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.), Senate Bill No. 81 (2021-2022 Reg. Sess.), and Penal Code section 1385, which the court denied. After defendant filed a notice of appeal, this court appointed counsel to represent defendant.
All further statutory references are to the Penal Code unless otherwise indicated.
Counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the case, requesting that we exercise our discretion to independently review the record for error, and identifying one potentially arguable issue: whether the court abused its discretion in denying defendant's motion.
This court offered defendant the opportunity to file a personal supplemental brief, which he has done. Defendant requests that we strike his section 667, subdivision (a)(1) prior serious felony conviction enhancement, or impose the midterm, rather than the upper term, on the principal count pursuant to Senate Bill No. 567. We dismiss.
"If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Delgadillo, supra, 14 Cal.5th at p. 232.)
I. FACTUAL AND PROCEDURAL BACKGROUND
On the court's own motion, we take judicial notice of this court's prior opinions in defendant's appeals from the original judgment (People v. Garcia (Sep. 6, 2012, E053503) [nonpub. opn.] (Garcia I), and the reinstatement of judgment after this court reversed the matter for a limited remand (People v. Garcia (May 30, 2017, [footnote continued on next page]
On March 25, 2010, a jury found defendant guilty of the grossly negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a), count 1), possession of a controlled substance while in possession of a firearm (Health &Saf. Code, § 11370.1, subd. (a), count 2), being a felon in possession of a firearm (Pen. Code, former § 12021, subd. (a), count 3), felony child abuse under circumstances likely to cause great bodily injury or death (Pen. Code, § 273a, subd. (a), count 4), and possession of a controlled substance (Health &Saf. Code, § 11377, count 5). The jury additionally found true allegations that defendant personally used a firearm in the commission of all the offenses (Pen. Code, § 12022.5, subd. (a)), that defendant had suffered a prior serious or violent felony conviction (Pen. Code, § 667, subd. (a)), and that defendant had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). (Garcia I, supra, E053503.)
The court sentenced defendant to an aggregate term of imprisonment of 29 years, including the upper term on count 4 (the principal count), and five consecutive years on the prior serious felony conviction enhancement. (Garcia I, supra, E053503.)
Defendant appealed. This Court reversed the judgment for a limited remand. This Court directed the court to hold a hearing on defendant's motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) as to whether new counsel should be appointed with respect to defendant's desire to file a motion for a new trial. This Court also ordered the trial court to correct the abstract of judgment and award defendant custody credits. In all other respects, this Court affirmed the judgment. (Garcia I, supra, E053503.)
The trial court subsequently granted defendant's Marsden motion and appointed new counsel. New counsel filed a motion for new trial based on ineffective assistance of counsel, which the court denied. It then reinstated the judgment in accordance with this court's order in Garcia I. (Garcia II, supra, E067771.)
Defendant appealed. We affirmed the judgment with directions to the superior court clerk to correct the abstract of judgment. (Garcia II, supra, E067771.)
On March 6, 2023, defendant filed a motion for modification of sentence pursuant to section 1385, Senate Bill No. 620, and Senate Bill No. 81, inviting the court to strike any or all his sentencing enhancements. The court denied the motion.
II. DISCUSSION
Defendant requests that we strike his section 667, subdivision (a)(1) prior serious felony conviction enhancement, or impose the midterm, rather than the upper term on the principal count. We dismiss.
"In 2017, the Legislature passed Senate Bill No. 620 (2017-2018 Reg. Sess.) . . . (Stats. 2017, ch. 682, §§ 1 &2, eff. Jan. 1, 2018), granting trial courts the discretion to strike firearm enhancements imposed under section 12022.53 'in furtherance of justice' under section 1385." (People v. Monroe (2022) 85 Cal.App.5th 393, 396.) "Meanwhile, in October 2018, the Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess.) . . . (Stats. 2018, ch. 1013, §§ 1-2), which took effect on January 1, 2019, and grants trial courts discretion to strike five-year serious felony enhancements (§ 667, subd. (a)(1)) under section 1385, subdivision (a) 'in furtherance of justice.'" (Id. at p. 397.)
"Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended section 1385 to include subdivision (c). (Stats. 2021, ch. 721.) Section 1385[, subdivision] (c)(1) provides that '[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.' (§ 1385[, subd.] (c)(1); see Stats. 2021, ch. 721.)" (People v. Mendoza (2023) 88 Cal.App.5th 287, 295.)
"Senate Bill No. 620 . . . does not apply independently to judgments that are final, . . ." (People v. Monroe, supra, 85 Cal.App.5th at p. 401.) Senate Bill No. 81's amendments to section 1385 apply to "all sentencings occurring after January 1, 2022." (§ 1385, subd. (c)(7).) Senate Bill No. 1393 does not apply to final convictions. (People v. Alexander (2020) 45 Cal.App.5th 341, 343.) Senate Bill No. 567 does not apply to final judgements. (People v. Fox (2023) 90 Cal.App.5th 826, 831.)
Defendant's judgment was final on August 3, 2017, when this court issued the remittitur in Garcia II, supra, E067771. (People v. Lopez (2020) 57 Cal.App.5th 409, 413 ["A judgment becomes final when it has reached final disposition in the highest court authorized to review it."]) Thus, neither this court nor the court below has authority to grant defendant the relief requested. The appeal is dismissed because defendant's appeal is from an order denying an unauthorized motion.
III. DISPOSITION
The appeal is dismissed.
We concur: MILLER J. FIELDS J.