Opinion
E082786
06-10-2024
THE PEOPLE, Defendant and Respondent, v. ALFRED HERNANDEZ, Defendant and Appellant.
Shiela O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FCH01275 Ingrid A. Uhler, Judge. Dismissed.
Shiela O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
OPINION
FIELDS, J.
INTRODUCTION
Defendant and appellant Alfred Hernandez appeals from a postjudgment order denying his petition for resentencing, filed pursuant to Senate Bill No. 483.
Appellate counsel filed a brief and asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders).) We dismiss.
We recognize that Wende does not apply to an appeal from the denial of postconviction relief. (People v. Delgadillo (2022) 14 Cal.5th 216, 226.) Thus, we have no obligation to conduct an independent review of the record.
PROCEDURAL BACKGROUND
In 1995, defendant was charged by information with attempted premeditated murder (Pen. Code, §§ 664,187, subd. (a), count 1) and assault by a state prisoner (§ 4501, count 2). The jury convicted him of both counts. A trial court sentenced defendant to life with the possibility for parole with a minimum term of 14 years on count 1, and it stayed count 2, pursuant to section 654.
All further statutory references will be to the Penal Code, unless otherwise indicated.
On or about October 19, 2023, defendant filed an in propria persona petition for resentencing pursuant to Senate Bill No. 483, alleging that he had two prison priors that the court should strike.
On November 8, 2023, the court held a hearing and appointed counsel for defendant. The court found that defendant was not eligible for resentencing since he had no prison priors. Thus, it denied his petition for resentencing.
Defendant filed a notice of appeal, in propria persona. We dismiss.
DISCUSSION
After the notice of appeal was filed, this court appointed counsel to represent defendant. Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, and identifying the following potential arguable issue: whether the trial court correctly denied defendant's request for resentencing.
On the court's own motion, the appeal filed from the trial court's denial of defendant's postjudgment petition for resentencing pursuant to Senate Bill No. 483 is dismissed because it does not affect defendant's substantial rights. (§ 1237, subd. (b).) Defendant was not authorized to bring a petition for resentencing under section 1172.75, and the trial court had no jurisdiction to modify his sentence. (See People v. Chlad (1992) 6 Cal.App.4th 1719, 1725.) Therefore, denial of defendant's petition could not have affected his substantial rights. (Id. at p. 1726.) Accordingly, the order denying defendant's petition for resentencing is not an appealable order, and the appeal must be dismissed. (See People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.)
"Senate Bill No. 483 added section 1171.1 to the Penal Code, which was subsequently renumbered without substantive change as section 1172.75. [Citation.] 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.' [Citation.] Once the Department of Corrections and Rehabilitation identifies those persons 'currently serving a term for a judgment that includes an enhancement described in subdivision (a)' to the sentencing court, 'the court shall recall the sentence and resentence the defendant.'" (People v. Monroe (2022) 85 Cal.App.5th 393, 399; § 1172.75, subds. (b) & (c).)
DISPOSITION
The appeal is dismissed.
We concur: RAMIREZ, P. J., MENETREZ, J.