Opinion
C093371
07-24-2023
THE PEOPLE, Plaintiff and Respondent, v. LARRY WAYNE LEA, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 19F1630
OPINION ON TRANSFER
ROBIE, ACTING P. J.
Defendant Larry Wayne Lea appeals the trial court's denial of his petitions, filed after his judgment was final, to strike his one-year prior prison term enhancement under Senate Bill No. 136 (2019-2020 Reg. Sess.) and reduce his conviction to a misdemeanor under Proposition 47, the Safe Neighborhoods and Schools Act (enacted by the electorate Nov. 4, 2014). Counsel filed an opening brief setting forth the facts and procedural history of the case and requesting this court to review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant did not file a supplemental brief and in an unpublished opinion, we dismissed defendant's appeal as abandoned. (People v. Lea (Sept. 24, 2021, C093371) [nonpub. opn.].) The Supreme Court granted defendant's petition for review and transferred the case back to us with directions to vacate our prior decision and reconsider the matter in light of People v. Delgadillo (2022) 14 Cal.5th 216. We vacated our decision.
Although this appeal arises from a postjudgment order and we have complied with Delgadillo's notice procedures, we exercise our discretion to independently review the record. (People v. Delgadillo, supra, 14 Cal.5th at pp. 230, 232, 233, fn. 6.) As to the appeal from the denial of defendant's petition to strike his one-year prior prison term enhancement under Senate Bill No. 136 (2019-2020 Reg. Sess.), we dismiss the appeal as from a nonappealable order. (People v. King (2022) 77 Cal.App.5th 629, 634.) As to the appeal from the denial of defendant's motion to reduce his felony to a misdemeanor under Proposition 47, we have found no arguable errors that would result in a disposition more favorable to defendant, and we will affirm that order.
BACKGROUND
On September 3, 2019, defendant pled guilty to receiving a stolen vehicle and admitted he had a prior strike conviction and had served a prior prison term. The stipulated factual basis for the plea indicated the value of the vehicle was $7,500. In accordance with the plea agreement, the trial court sentenced him to the low term of 16 months, doubled for the strike, plus one year for the prior prison term, for an aggregate sentence of three years eight months. The court awarded credits and imposed various fines and fees. Defendant did not appeal the judgment and it became final on November 4, 2019. (Cal. Rules of Court, rule 8.308(a); People v. Alexander (2020) 45 Cal.App.5th 341, 344.)
Defendant filed a petition to strike his one-year prior prison term enhancement pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) on September 29, 2020. The trial court denied the petition. Defendant filed a second petition to strike the prior prison term enhancement on January 8, 2021. The trial court again denied the petition. Defendant filed a timely notice of appeal. Defendant also filed a petition for resentencing under Proposition 47 on December 17, 2020, seeking to reduce his felony conviction to a misdemeanor. The trial court denied the petition. Defendant filed a timely notice of appeal.
The petition references Senate Bill No. 620 (2017-2018 Reg. Sess.), not Senate Bill No. 136 (2019-2020 Reg. Sess.), but the substance of the petition is as to the prior prison term enhancement.
DISCUSSION
I
Denial Of Senate Bill No. 136 Resentencing Petition
Defendant was convicted September 3, 2019. Defendant did not appeal and his conviction became final on November 4, 2019. Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) became effective on January 1, 2020. Defendant filed his second petition to strike his one-year prior prison term enhancement under Senate Bill No. 136 on January 8, 2021, well after his judgment was final. Senate Bill No. 136 does not provide any statutory method by which a defendant with a final judgment can seek resentencing. (Pen. Code, § 667.5.) Accordingly, the trial court did not have jurisdiction to modify his sentence and grant relief. (People v. King, supra, 77 Cal.App.5th at p. 634; People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.) Because the trial court lacked jurisdiction to modify defendant's sentence, the order denying that motion is nonappealable. The appeal from that order must be dismissed. (King, at p. 634.)
Undesignated statutory references are to the Penal Code.
II
Denial Of Proposition 47 Resentencing Petition
In November 2014, Proposition 47 amended several enumerated drug and theft related crimes from felonies to misdemeanors, unless committed by an ineligible defendant, and created new resentencing provisions for those convicted of an offense that is now a misdemeanor. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091-1092; § 1170.18.) Defendant was convicted of a felony count of receiving stolen property under section 496d in 2019, five years after Proposition 47 became effective. Proposition 47 does not apply to section 469d convictions. (People v. Orozco (2020) 9 Cal.5th 111, 122; People v. Bussey (2018) 24 Cal.App.5th 1056, 1063-1064.) Accordingly, the trial court correctly denied defendant's petition for resentencing.
DISPOSITION
The appeal filed January 14, 2021, from the order denying resentencing under Senate Bill No. 136 is dismissed as from a nonappealable order. The December 28, 2020 order denying the petition for resentencing under Proposition 47 is affirmed.
We concur: MAURO, J. DUARTE, J.