Opinion
B321776
11-21-2023
THE PEOPLE, Plaintiff and Respondent, v. DAMOND DESHON JACKSON, Defendant and Appellant.
Marta I. Stanton, by appointment of the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TA048525. Hector E. Gutierrez, Judge.
Marta I. Stanton, by appointment of the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, Acting P. J.
In 1998, a jury convicted defendant and appellant Damond Deshon Jackson of numerous offenses arising out of a home invasion robbery and shooting. He was sentenced to a total of 44 years to life in state prison, including a one-year sentence enhancement for having served a prior prison term under section 667.5, subdivision (b) of the Penal Code. On appeal, we struck the prior prison term sentence enhancement. (People v. Jackson (Oct. 27, 1999, B120763) [nonpub. opn.] (Jackson).) Defendant was subsequently resentenced to an aggregate term of 43 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
In 2022, defendant filed a petition requesting resentencing pursuant to section 1172.75, which invalidated most one-year prison term sentence enhancements and provides resentencing relief for defendants "currently serving a term for a judgment that includes [such] an enhancement[.]" (§ 1172.75, subds. (a)-(b).) The trial court denied the motion and defendant appealed. Because we lack jurisdiction to consider defendant's appeal, we must dismiss it.
When defendant filed his petition, the relevant resentencing statute was numbered section 1171.1. Effective June 30, 2022, section 1171.1 was renumbered section 1172.75, with no change in text. (Stats. 2022, ch. 58, § 12.) For simplicity, we refer to the section by its new numbering.
FACTS AND PROCEDURAL BACKGROUND
In July 1997, defendant was convicted of first degree robbery (§ 211), first degree burglary (§ 459), assault with a semiautomatic firearm (§ 245, subd. (b)), and unlawful possession of a firearm (§ 12021, subd. (a)(1)). He was sentenced to a term of 44 years to life in state prison. Although the jury made no special findings as to the prosecution's prior prison term allegations (Jackson, supra, B120763), the trial court included in defendant's sentence a one-year sentence enhancement for defendant's prior prison term (§ 667.5, subd. (b)). On appeal, we struck the prior prison term enhancement and remanded for resentencing. (Jackson, supra, B120763.) Defendant's sentence was consequently reduced to 43 years to life.
We also found that the trial court improperly imposed concurrent sentences for the robbery and burglary convictions, and directed that, on remand, the burglary conviction be stayed pursuant to section 654. (Jackson, supra, B120763.)
On January 10, 2022, defendant filed a petition requesting resentencing under section 1172.75, which invalidated most prior prison term sentence enhancements imposed under section 667.5, subdivision (b). Among other things, defendant argued that he was entitled to resentencing notwithstanding the fact that the invalid enhancement had been struck from his sentence over 20 years earlier.
The trial court held a contested hearing, after which it denied defendant's petition. The court explained that it did not have jurisdiction to rule on his petition because "[t]here is no provision in the [P]enal [C]ode that allows for a defendant to initiate resentencing per . . . section 117[2.75]." Moreover, the court found that defendant "ha[d] not shown . . . entitle[ment] to relief, because he is not serving a sentence for a one-year prison prior. The punishment was stricken, therefore, [defendant] is not in the category of individuals who are entitled to relief."
Defendant timely appealed.
DISCUSSION
When defendant was sentenced, "section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years." (People v. Burgess (2022) 86 Cal.App.5th 375, 379-380 (Burgess).) Effective January 1, 2022, Senate Bill No. 483 (2021-2022 Reg. Sess.) added section 1172.75, which renders "legally invalid" any section 667.5, subdivision (b) sentence enhancement imposed prior to January 1, 2020, "except for any enhancement imposed for a prior conviction for a sexually violent offense ...." (§ 1172.75, subd. (a).)
Section 1172.75 also "establishes a mechanism to provide affected defendants a remedy for those legally invalid enhancements" (Burgess, supra, 86 Cal.App.5th at p. 380) by directing the Secretary of the California Department of Corrections and Rehabilitation and the correctional administrator of each county to identify affected defendants and provide their information to the sentencing court for review and resentencing. (§ 1172.75, subds. (b)-(c).) Unlike some resentencing statutes, section 1172.75 does not provide "resentencing relief initiated by any individual defendant's petition or motion." (Burgess, supra, 86 Cal.App.5th at p. 380; see also People v. Escobedo (2023) 95 Cal.App.5th 440, 447-448.)
Yet defendant nevertheless filed a motion challenging his sentence under section 1172.75 more than 20 years after the judgment was final and he had begun serving his sentence. "A freestanding motion challenging an incarcerated defendant's sentence is not a proper procedural mechanism to seek relief. A motion is not an independent remedy, but must be attached to some ongoing action. [Citation.]" (People v. King (2022) 77 Cal.App.5th 629, 640.) Without an "ongoing action" (ibid.), the trial court lacked jurisdiction to adjudicate defendant's motion. (Burgess, supra, 86 Cal.App.5th at p. 382.) And, because the trial court lacked jurisdiction, its order denying defendant's motion is nonappealable. (Id. at pp. 381-382; see also People v. Torres (2020) 44 Cal.App.5th 1081, 1084 ["If the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed"].)
Defendant acknowledges that "filing a motion pursuant to . . . section 1172.75 in the trial court may not have been the proper vehicle to present this claim," but invites us to save his appeal by "treat[ing] [his] opening brief as a petition for writ of habeas corpus." However, apart from a general appeal to "the interests of justice and judicial economy," defendant offers no reason for us to exercise our discretion to construe his improper appeal as a habeas petition. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367 [appellate court's discretion to treat appeal as habeas petition "should be exercised only in unusual circumstances"].) Accordingly, we decline defendant's invitation and dismiss his appeal.
DISPOSITION
The appeal is dismissed.
We concur: CHAVEZ, J., HOFFSTADT J.