Opinion
E081035
06-05-2024
THE PEOPLE, Plaintiff and Respondent, v. BENNY ROSS HARRIS, JR., Defendant and Appellant.
Robert L.S. Angres, 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, Kristen Chenelia and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FBA1000045. Debra Harris, Judge. Appeal dismissed.
Robert L.S. Angres, 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, Kristen Chenelia and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS J.
INTRODUCTION
In 2013, a trial court sentenced defendant and appellant Benny Ross Harris, Jr., to 35 years and four months in state prison. In 2023, defendant filed an in propria persona motion for resentencing pursuant to Senate Bill No. 483. The trial court resentenced him and struck two one-year prior prison enhancements. Defendant appeals, arguing that the court erred in conducting the resentencing hearing in his absence, he was entitled to a full resentencing, and the court failed to recalculate his presentence custody credits. We conclude that because defendant was not authorized to file a motion under Penal Codesection 1172.75 (former § 1171.1), the trial court lacked jurisdiction to rule on his motion. Therefore, the court's order is not appealable, and we dismiss defendant's appeal.
All further statutory references will be to the Penal Code, unless otherwise indicated.
Effective June 30, 2022, the Legislature renumbered section 1171.1 to section 1172.75. (Stats. 2022, ch. 58, § 12.) There were no substantive changes to the statute. We cite to section 1172.75 in this opinion for ease of reference.
We note that this court previously issued a tentative opinion finding the trial court lacked jurisdiction to rule on defendant's motion, since section 1172.75 does not provide a mechanism for defendants to initiate resentencing proceedings. Defendant asked for the opportunity to brief the issue, and we withdrew the tentative opinion to allow for supplemental briefing. We now maintain that the appeal must be dismissed.
PROCEDURAL BACKGROUND
A jury found defendant guilty of two counts of robbery (§ 211), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), one count of conspiracy (§ 182, subd. (a)(1)), and one count of active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found true various gang and firearm allegations. (§§ 186.22, subd. (b)(1), 12022, subd. (a)(1), 12022.53, subd. (e)(1).) Defendant admitted the truth of one prior serious felony conviction, two prior prison convictions, and one prior strike conviction. (§§ 667, subd. (a)(1), 667.5, subd. (b), 1170.12, subd. (a)-(d) &667, subd. (b)-(i).) The trial court sentenced him to a total term of 35 years and 8 months in state prison.
This court affirmed the judgment on appeal but remanded the matter for resentencing. (People v. Benny Ross Harris, Jr., et al. (June 13, 2013, E053353) [nonpub. opn.].) On remand, the trial court resentenced defendant to a total term of 35 years and 4 months in state prison.
Effective January 1, 2022, the Legislature enacted Senate Bill No. 483, which added section 1172.75. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12, eff. June 30, 2022.) Section 1172.75 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 as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid." (§ 1172.75, subd. (a).)
On January 18, 2023, defendant filed a motion for resentencing pursuant to Senate Bill No. 483, arguing that his two prison priors should be stricken. On February 22, the trial court conducted a hearing on the motion, struck the two section 667.5, subdivision (b) enhancements, and reduced defendant's sentence by two years to 33 years and 4 months in prison.
We note that when the court struck the section 667.5, subdivision (b) enhancements, it mistakenly stated they were previously stayed. The record reflects that they were previously imposed.
DISCUSSION
The Appeal Must Be Dismissed
Defendant argues that he had a right to be present at the resentencing hearing, and he was entitled to a full resentencing pursuant to section 1172.75. He also argues the court failed to recalculate his presentence custody credits. We conclude that we do not have jurisdiction to consider this appeal.
People v. Burgess (2022) 86 Cal.App.5th 375 (Burgess) involved an appeal from an order denying a defendant's petition for resentencing under section 1172.75. In that case, the superior court denied the defendant's petition on the ground that section 1172.75 does not allow a petitioner to seek resentencing relief on his or her own motion. (Id. at p. 379.) On appeal, the court held that it lacked jurisdiction to review the trial court order denying the defendant relief under section 1172.75, citing People v. King (2022) 77 Cal.App.5th 629, 634 (King). (Burgess, supra, 86 Cal.App.5th at pp. 381382.)
As explained more fully in Burgess, once a criminal judgment becomes final, courts no longer have jurisdiction to vacate or modify a sentence absent an exception to the jurisdictional bar. (Burgess, supra, 86 Cal.App.5th at p. 381; see also King, supra, 77 Cal.App.5th at p. 634.) There are limited exceptions to this general rule. For instance, the trial court retains jurisdiction to resentence a defendant where "specific statutory avenues" authorize defendants to seek resentencing. (King, supra, 77 Cal.App.5th at p. 637.) However, section 1172.75 does not authorize a defendant to initiate a request for resentencing.
Section 1172.75 prescribes the procedure for resentencing affected defendants. The Secretary of the Department of Corrections and Rehabilitation (CDCR) and the county correctional administrator must first identify individuals serving terms that include no-longer-valid enhancements and then provide certain information about those individuals to the sentencing court that imposed the enhancement. (§ 1172.75, subd. (b); see People v. Newell (2023) 93 Cal.App.5th 265, 268.) "[S]ection 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation identifying a defendant as a person serving a sentence that includes a prior prison term enhancement." (People v. Cota (2023) 97 Cal.App.5th 318, 332.) In other words, review "is only triggered by receipt of the necessary information from the CDCR Secretary or a county correctional administrator." (Burgess, supra, 86 Cal.App.5th at p. 384.)
Accordingly, in Burgess, since the defendant's resentencing petition was unauthorized by statute, the trial court did not have jurisdiction to adjudicate it. (Burgess, supra, 86 Cal.App.5th at p. 382.) As such, the appellate court did not have jurisdiction over the defendant's appeal from the denial of the motion. (Ibid.; King, supra, 77 Cal.App.5th at p. 634.) Thus, the court dismissed the appeal. (Burgess, at p. 385; see King, at p. 634.)
We follow Burgess and King here by dismissing the appeal, which seeks review of the trial court's resentencing order. Defendant sought to have a resentencing hearing pursuant to section 1172.75, a statute that does not authorize an individual defendant to seek such relief. For the reasons outlined in Burgess, the trial court did not have jurisdiction to adjudicate defendant's motion. (Burgess, supra, 86 Cal.App.5th at pp. 381-382; see King, supra, 77 Cal.App.5th at p. 634.) Since the court lacked jurisdiction when it resentenced defendant, the court's order could not have affected his substantial rights. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726.) Accordingly, the court's order on defendant's motion for resentencing is not an appealable order, and the appeal must be dismissed. (Id. at p. 1725; see People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; see also King, at p. 634.)
In his supplemental brief, defendant contends that recent amendments to section 1172.1 should apply retroactively, and we should thereby deem the trial court's decision to entertain his motion for resentencing "as a legitimate exercise of its discretion such that any order thereafter issued is appealable." He asserts that under the present version of the statute, when a defendant suffers a prison commitment or a county jail sentence under section 1170, subdivision (h)," 'the court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law . . ., recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence ....' (§ 1172.1, subd. (a)(1), italics added.)" However, defendant's claim has no merit, since the trial court did not seek to resentence defendant on its own motion under section 1172.1. Rather, defendant filed a resentencing motion pursuant to section 1172.75. Accordingly, the trial court conducted the resentencing proceedings under section 1172.75, not section 1172.1, subdivision (a)(1).
In the alternative, defendant asks this court to deem this appeal as a petition for writ of habeas corpus to reach the merits of his claims. We decline to exercise our discretion to do so, given the unique posture of this case. However, we decline without prejudice to defendant filing a petition for writ of habeas corpus, if appropriate. We express no opinion on the merits of a petition for writ of habeas corpus in this case.
DISPOSITION
The appeal is dismissed.
We concur: McKINSTER Acting P. J. CODRINGTON J.