Opinion
B310648
07-19-2021
THE PEOPLE, Plaintiff and Respondent, v. ERON RODNEY JACKSON, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. KA092793, Douglas Sortino, Judge. Appeal dismissed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CHANEY, J.
Eron Rodney Jackson was convicted in 2011 for a burglary he committed in 2010. Jackson's sentence, imposed on June 6, 2011, included a five year enhancement because the trial court found true the allegation that Jackson had suffered a prior serious felony conviction under Penal Code section 667, subdivision (a)(1). We affirmed Jackson's conviction on direct appeal in a nonpublished opinion issued December 20, 2011. (People v. Jackson (Dec. 20, 2011, B233522) [nonpub. opn.] (Jackson I).)
Further statutory references are to the Penal Code.
In 2018, the Legislature enacted and the Governor signed Senate Bill No. 1393 (S.B. 1393), which amended sections 667 and 1385 to give a trial court discretion that it did not have before January 1, 2019 to strike certain prior serious felony conviction enhancements. (Stats. 2018, ch. 1013, §§ 1, 2.) On January 13, 2021, Jackson filed a motion in the trial court for resentencing under S.B. 1393, requesting that the trial court strike his prior serious felony conviction.
Jackson appeals from the trial court's order denying his motion for resentencing. Because the trial court was without jurisdiction to hear the motion, we will dismiss Jackson's appeal.
BACKGROUND
“On December 10, 2010, Deputy Sheriff Adrienne Myers was summoned to the scene of a residential burglary in progress on Rosecrans Avenue in La Mirada. As Deputy Myers arrived she saw three men, one of whom was appellant, coming out of the residence. The men fled when they saw the deputy.
“Appellant was arrested in a carport two blocks from the scene of the burglary. Deputy Myers arrived at the scene after appellant was taken into custody and identified him as one of the men she saw leaving the house. Jewelry taken from the house was recovered underneath a car in the carport, and other jewelry taken from the house was found in braids in appellant's hair. A gun had been stolen from the residence. After his arrest, appellant helped the police find the gun in the neighborhood.
“Appellant was charged by information with burglary and grand theft. [(§§ 459, 487, subd. (d)(2).)] The theft charge was dismissed before trial. In 2008, appellant had been convicted of one count of first degree burglary (L.A.S.C. case no. TA095484-03). That prior conviction was alleged as both a strike and a serious felony conviction. [(§§ 1170.12, subds. (a)-(d); 667, subd. (a).)]
“A jury found appellant guilty of burglary. Appellant waived jury on the priors, which the court found true. Appellant was sentenced to the midterm of four years, doubled because of the strike, plus five years for the serious felony prior, for a total term of 13 years. Various fines and fees were imposed, and appellant received credit for 179 days served and 26 days good/work time.” (Jackson I, supra, B233522, at p. 2.)
“Appellant's conduct credits were later corrected, and he was awarded 88 days of conduct credits.”
We affirmed the trial court's judgment on Jackson's direct appeal in a nonpublished opinion issued December 20, 2011. We issued our remittitur in Jackson's direct appeal on February 22, 2012.
In 2018, the Legislature enacted and the Governor signed S.B. 1393. The legislation amended sections 667 and 1385 to give trial courts discretion to strike prior serious felony enhancements that they did not have before January 1, 2019. (Stats. 2018, ch. 1013, §§ 1, 2.)
In 2021, Jackson petitioned the trial court for resentencing under S.B. 1393. The trial court summarily denied the motion. Jackson filed a timely notice of appeal.
This court entered an order appointing counsel for Jackson. After examination of the record, counsel filed an opening brief raising no issues and asking this court to follow the procedures set forth in People v. Serrano (2012) 211 Cal.App.4th 496. On May 11, 2021, we sent a letter to Jackson and his appointed counsel advising Jackson that within 30 days he could personally submit any contentions or issues he wanted us to consider, and directing counsel to send the record and opening brief to Jackson immediately.
Jackson filed a supplemental brief with contentions we address below.
DISCUSSION
In his supplemental brief, Jackson challenges the five-year sentence enhancement the trial court imposed under section 667, subdivision (a)(1). Jackson contends that the enhancement was improperly imposed because the elements of the prior were not proven beyond a reasonable doubt to a jury. Jackson also contends that the sentence is “in excess of the [trial court's] jurisdiction, so it is considered unauthorized.” Jackson argues in his supplemental brief that he “suggested using [S.B.] 1393 as an alternative to correct such a prejudicial error by the trial court.”
Jackson's sentence, imposed and affirmed in 2011, became final in 2012. In 2018, more than six years after the judgment in Jackson's case became final, the Legislature enacted and the Governor signed S.B. 1393. The legislation amended sections 667 and 1385 to give trial courts discretion to strike prior serious felony conviction enhancements that they did not have before January 1, 2019. (Stats. 2018, ch. 1013, §§ 1, 2.)
“ ‘[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.' ” (People v. Vieira (2005) 35 Cal.4th 264, 306.) “A petition for writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely” if filed with the clerk of the United States Supreme Court “within 90 days after entry of the order denying discretionary review.” (U.S. Supreme Ct. Rules, rule 13.) The docket in Jackson's direct appeal reflects no petition for discretionary review in the California Supreme Court, and no petition for writ of certiorari in the United States Supreme Court. We issued our remittitur in the case on February 22, 2012.
Jackson filed a petition to be resentenced under S.B. 1393 in January 2021.
S.B. 1393 applies to judgments not yet final as of January 1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973 (Garcia).) Defendants whose judgments were final as of January 1, 2019, however, are not entitled to relief under S.B. 1393. (People v. Alexander (2020) 45 Cal.App.5th 341, 345.)
Even if the judgment against Jackson were susceptible to a petition for resentencing under S.B. 1393, the arguments he makes in his supplemental brief regarding the trial of his serious prior felony under section 667, subdivision (a)(1) are not arguments that would apply to an S.B. 1393 analysis. They are arguments that should have been-but were not-raised on Jackson's direct appeal. Those contentions represent an improper collateral attack on the judgment and are generally no longer cognizable. (In re Robbins (1998) 18 Cal.4th 770, 814, fn. 34.)
The record contradicts the contentions factually, as well. Jackson waived jury on the section 667, subdivision (a)(1) priors trial, and the issue was tried to the court. The court, after hearing evidence regarding Jackson's priors, found the section 667, subdivision (a)(1) allegation to be true.
Finally, the five-year enhancement under section 667, subdivision (a)(1) was not in excess of the trial court's jurisdiction when it was imposed. It was a mandatory enhancement. Nor would it be unauthorized if the trial court, after exercising its discretion, imposed it today; it remains a discretionary enhancement that the trial court may impose. (Garcia, supra, 28 Cal.App.5th at p. 971.) Jackson's assertion that the trial court acted in excess of its jurisdiction is incorrect, whether under former or current section 667, subdivision (a)(1).
We are satisfied that Jackson's counsel complied with the responsibilities People v. Serrano, supra, 211 Cal.App.4th 496 imposes. Additionally, we have considered and rejected the contentions Jackson raised in his supplemental brief, and have reviewed the entire record and found no arguable issues. The trial court was without jurisdiction to hear Jackson's motion, which was filed almost a decade after his conviction became final. We therefore dismiss the appeal. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1726; People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.)
DISPOSITION
The appeal is dismissed.
We concur: ROTHSCHILD, P. J., CRANDALL, J. [*]
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.