Opinion
B298826
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN IVY, Defendant and Appellant.
John Ivy, in pro. per.; Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SA068473) APPEAL from an order of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Dismissed. John Ivy, in pro. per.; Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
INTRODUCTION
In 2010, appellant John Ivy pleaded no contest to two counts of second degree robbery and admitted the truth of allegations that he personally used a firearm in the commission of the offenses. He did not appeal the judgment, which became final. In 2019, appellant filed a petition for resentencing under newly enacted Penal Code section 12022.53, subdivision (h). The trial court denied the petition, holding the new statute inapplicable to defendants like appellant, whose judgments became final before the statute went into effect. Appellant appealed from the trial court's order, and his court-appointed counsel filed an opening brief under People v. Wende (1979) 25 Cal.3d 436 (Wende), identifying no arguable issues and asking this court to conduct an independent review of the record. Appellant filed a supplemental brief.
We dismiss the appeal. Because Penal Code section 12022.53, subdivision (h), does not apply retroactively to appellant's judgment, which became final before the statute's effective date, the trial court lacked jurisdiction to resentence appellant as he requested in his petition. Thus, the trial court's order denying the petition is not appealable, and this appeal from that order must be dismissed.
BACKGROUND
In July 2010, appellant John Ivy pleaded no contest to two counts of second degree robbery and admitted the truth of allegations that he personally used a firearm in the commission of the offenses. In November 2010, the court sentenced appellant to concurrent 15-year prison terms, each comprising a five-year term on a robbery conviction and a ten-year enhancement on a firearm allegation. Appellant did not appeal the judgment.
In 2017, the Legislature enacted Senate Bill No. 620, which amended Penal Code section 12022.53 to grant trial courts new discretion -- effective January 1, 2018 -- to strike firearm enhancements in the interest of justice. (Pen. Code, § 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) In April 2019, appellant filed a petition for resentencing under Penal Code section 12022.53, subdivision (h).
In his petition, appellant also requested a certificate of rehabilitation under Penal Code section 4852.01, subdivision (b). In support of this request, appellant submitted certificates of achievement he earned while incarcerated. Appellant was ineligible to file a petition for a certificate of rehabilitation because he had not completed the "period of rehabilitation" required by statute; indeed, the period of rehabilitation had not even begun, since appellant had not been discharged from custody. (See Pen. Code, § 4852.03, subds. (a)-(b) [petitioner is ineligible to file petition for certificate of rehabilitation with the court until after "period of rehabilitation," which "commences upon the discharge of the petitioner from custody"].) On appeal, appellant makes no mention of his request for a certificate of rehabilitation.
The court denied the petition. It observed that appellant's judgment became final 60 days after the court sentenced him in 2010. Relying on caselaw holding that Penal Code section 12022.53, subdivision (h), does not apply to judgments that became final before its effective date in January 2018 (People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 (Fuimaono); People v. Harris (2018) 22 Cal.App.5th 657, 659 (Harris)), the court concluded the amendment did not apply to appellant's judgment.
Appellant filed a timely notice of appeal from the court's order denying his petition, relying on People v. Francis (1969) 71 Cal.2d 66 (Francis) to contend he was eligible for resentencing. Shortly thereafter (on June 3, 2019), appellant filed a petition for a writ of habeas corpus, similarly contending he was eligible for resentencing. We denied the petition on June 20, 2019, "on the ground that the relevant Senate Bill No. 620 amendment does not apply to a judgment that became final prior to the amendment's effective date." Our Supreme Court denied review.
In August 2019, we appointed counsel to represent appellant on this appeal. Appellant's counsel submitted a Wende brief summarizing the appellate record, raising no contention of error, and requesting that we independently review the record for error.
Appellant filed a supplemental brief (after receiving notice from this court of his right to do so). Again relying on Francis, supra, 71 Cal.2d 66, among other cases, appellant stated, "I have reason to believe that my case is still active due to the fact that my right to appeal in higher courts still stands." Appellant additionally stated the following: "When I was charged October 6, 2008 there were gang allegations/enhancements against me. During prelim it was deemed that I and my co-defendants did not belong or commit these crimes for any gang benefits. [¶] As I took a deal for 2nd degree robbery I did not know that the 12022.53(B) gun enhancement also had a clause/subsection under 12022.53(E), that I would have had [to] plead to a gang enhancement to be convicted of 12022.53(B).[] I would like the court to consider reversing or decreasing the time of the enhancement. [¶] From my understanding of a case I've read (United States v. Davis ET AL. No. 18-431) using a firearm in the commission of a robbery is an element of that crime. Its [sic] very hard to accept a 10 year enhancement, especially when I'm not a gang member." Finally, appellant stated, "I am a changed man. I am deeply remorseful for committing 2nd degree robbery and all other wrongs I am not proud of. I am very ashamed of my negative past and I would like to right my wrongs, some way, some how."
"Penal Code section 12022.53's subdivision (e)(1) has this effect: Ordinarily, section 12022.53's sentence enhancements apply only to personal use or discharge of a firearm in the commission of a statutorily specified offense, but when the offense is committed to benefit a criminal street gang, the statute's additional punishments apply [as a result of subdivision (e)(1)] even if . . . the defendant did not personally use or discharge a firearm but another principal did." (People v. Brookfield (2009) 47 Cal.4th 583, 590 (Brookfield).)
DISCUSSION
We have no jurisdiction to review the trial court's denial of appellant's petition for resentencing under Penal Code section 12022.53, subdivision (h). "Senate Bill No. 620 and the associated amendment to section 12022.53 apply retroactively to nonfinal cases." (People v. Hargis (2019) 33 Cal.App.5th 199, 209.) However, appellant's judgment, which he did not appeal, became final long before Senate Bill No. 620 amended Penal Code section 12022.53. Specifically, the judgment became final shortly after the trial court pronounced his sentence in November 2010. (See People v. Barbuza (2018) 21 Cal.App.5th 1315, 1319 (Barbuza) [defendant's judgment became final upon expiration of 60-day deadline to appeal from trial court's imposition of sentence]; cf. Harris, supra, 22 Cal.App.5th at p. 659, fn. 2 [where defendant appeals judgment, it becomes final when time for petitioning the United States Supreme Court for writ of certiorari expires].) Because Penal Code section 12022.53, subdivision (h), does not apply retroactively to appellant's final judgment, the trial court lacked jurisdiction to resentence appellant under it. (Fuimaono, supra, 32 Cal.App.5th at p. 135.) The trial court's order denying appellant's petition for resentencing was therefore not appealable, and the appeal from the order must be dismissed. (Ibid.)
None of appellant's contentions in his supplemental brief entitle him to relief. We address each in turn.
Appellant contends his case remains "active" because his "right to appeal in higher courts still stands." Assuming appellant means his judgment has not yet become final, he is mistaken. As noted, his judgment became final in January 2011, 60 days after the trial court pronounced his sentence in November 2010. (See Barbuza, supra, 21 Cal.App.5th at p. 1319.) None of the cases on which appellant relies suggest otherwise. Appellant relies on People v. Hurlic (2018) 25 Cal.App.5th 50, in which the court explained that Francis, supra, 71 Cal.2d 66 and In re Estrada (1965) 63 Cal.2d 740 -- the other cases on which appellant relies -- have been applied to extend the benefit of Penal Code section 12022.53, subdivision (h), to "nonfinal" convictions. (People v. Hurlic, supra, at p. 56.) In Hurlic, the defendant's judgment was nonfinal because he timely appealed the judgment shortly after Senate Bill No. 620 was enacted, and his appeal was still pending when Penal Code section 12022.53, subdivision (h), went into effect. (See id. at p. 54.) Here, in contrast, appellant's judgment became final long before Senate Bill No. 620 was enacted.
Appellant asks us to consider reversing or reducing his sentence enhancement for personal use of a firearm in the commission of robbery, contending he was unaware of Penal Code section 12022.53, subdivision (e), at the time he entered his plea. Assuming appellant means his ignorance of the subdivision rendered his plea unknowing or involuntary, his challenge to the validity of his plea is improper on this appeal from the trial court's order denying appellant's petition for resentencing. In that petition, appellant did not challenge the validity of his plea. Even had appellant raised this ground for relief in an appeal from the judgment, the appeal would be defective because (1) appellant did not file a sworn statement with the trial court stating this ground for relief, and (2) the trial court did not issue a certificate of probable cause. (See Pen. Code, § 1237.5 ["No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, . . . except where" defendant has filed sworn statement showing reasonable grounds going to legality of proceedings and trial court has filed certificate of probable cause]; see also, e.g., People v. Shelton (2006) 37 Cal.4th 759, 769 ["Absent a certificate of probable cause, the Court of Appeal could not entertain [the defendant's] sentence challenge, . . . and it had no alternative but to dismiss the appeal"].)
Appellant implies that Penal Code section 12022.53, subdivision (e), rendered his firearm enhancements improper in the absence of his plea of guilty or no contest to a gang allegation. But the subdivision does not narrow the applicability of the firearm enhancement. Instead, as our Supreme Court has explained, it expands the enhancement's applicability. (See Brookfield, supra, 47 Cal.4th at p. 590 ["Section 12022.53's subdivision (e)(1) has this effect: Ordinarily, section 12022.53's sentence enhancements apply only to personal use or discharge of a firearm in the commission of a statutorily specified offense, but when the offense is committed to benefit a criminal street gang, the statute's additional punishments apply [as a result of subdivision (e)(1)] even if . . . the defendant did not personally use or discharge a firearm but another principal did"].)
Finally, appellant expresses remorse and a desire to right his wrongs. These sentiments, while commendable, do not give us jurisdiction over his appeal.
By virtue of appellant's court-appointed counsel's compliance with the Wende procedure and our review of the record, appellant has received adequate and effective appellate review of the order denying his petition. (See Smith v. Robbins (2000) 528 U.S. 259, 278-279.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.