Opinion
A157292
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. JAMES KENDELL LEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR214843)
Defendant's appeal stems from the trial court's postjudgment order denying his request to strike a firearm enhancement pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Bill No. 620). Having concluded defendant has appealed from a nonappealable order, we will dismiss the appeal. (People v. Mendez (2012) 209 Cal.App.4th 32, 34; People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.)
BACKGROUND
Defendant was involved with three others in a residential robbery in which one of the suspects pointed a gun at an adult female resident and a second suspect pointed a gun at a male adult resident and his eight-month-old child's head. After ransacking the home, and taking a computer, an iPhone, cash, and the family dog, defendant and the other suspects took the keys to the victims' car. Officers located the stolen vehicle and attempted to conduct a traffic stop. A pursuit ensued at speeds up to 120 miles per hour. Defendant, the driver, ultimately lost control of the vehicle and collided with the center median. Defendant and codefendant Patrick Coleman were found in possession of loaded semiautomatic handguns, one of which was located on the driver's side floorboard. The victims' property was located inside the car.
On December 3, 2013, defendant entered a no contest plea to second degree robbery and admitted a 10-year firearm enhancement (Pen. Code, § 12022.53, subd. (b)) in exchange for a 12-year state prison sentence, imposed on January 9, 2014. Upon entering his plea, defendant admitted he "did use the firearm" before the court found the enhancement true. Slightly over a month later, in January 2014, the court sentenced defendant to the low term of two years on the robbery charge plus an additional 10 years on the firearm enhancement for a total of 12 years. From our review of the record, it does not appear defendant appealed from this judgment.
At the time defendant was sentenced, a trial court had no power to strike a firearm enhancement. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) In October 2017, however, Bill No. 620 was enacted; it became effective on January 1, 2018. (Stats. 2017, ch. 682.) Bill No. 620 gives a trial court discretion to strike a firearm enhancement under Penal Code section 12022.53, subdivision (h).
On November 19, 2018, defendant filed a request for resentencing under Bill No. 620 to have the trial court exercise its newly granted discretion to strike the 10-year firearm enhancement. The trial court denied the request, noting defendant's assertion that he did not have a gun during the robbery was "revisionist history" because it was contrary to his admission at the time of his original plea that he did use a firearm.
Defendant appealed. His appointed counsel filed a brief requesting we independently review the record for error pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). In the alternative, should we conclude a full Wende review is not required, he asks that we conduct the level of review prescribed in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) and adopted in People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano).
Defendant has been notified by appellate counsel that he may file a supplemental brief. No supplemental brief has been received.
DISCUSSION
We dismiss the appeal for two reasons. First, defendant is not entitled to Wende review. "In an indigent criminal defendant's first appeal as a matter of right, the Court of Appeal must independently review the record if appointed counsel represents he or she has found no arguable issues." (Ben C., supra, 40 Cal.4th at p. 535, citing Anders v. California (1967) 386 U.S. 738; Wende, supra, 25 Cal.3d 436.) A defendant, however, is not entitled to such review "in subsequent appeals." (Serrano, supra, 211 Cal.App.4th at p. 503; see People v. Kisling (2015) 239 Cal.App.4th 288, 290.) As this is an appeal from a motion for resentencing, not a first appeal, as a matter of right, defendant is not entitled to Wende review. Because neither defendant nor his counsel has raised any claims of error, we dismiss the appeal as abandoned. (See Serrano, at pp. 503-504; Kisling, at p. 292 & fn. 3.)
Second, defendant was convicted in 2013 and sentenced in 2014, and the judgment has since become final. Bill No. 620 "does not contain language authorizing resentencing of convictions after they became final. And absent any new authority to resentence defendant under Senate Bill No. 620, the trial court lacked jurisdiction to grant defendant's resentencing request." (People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; see People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327.) Because the trial court lacked jurisdiction to grant the relief requested in defendant's motion, its order denying the motion did not affect his substantial rights and is not an appealable postjudgment order. (Pen. Code, § 1237, subd. (b); People v. Turrin, supra, 176 Cal.App.4th at p. 1208; People v. Johnson (2019) 32 Cal.App.5th 938, 941; Hernandez, at p. 326.) Thus, "this appeal is 'irregular' and will be dismissed." (Johnson, at p. 941; see Fuimaono, at p. 135.)
DISPOSITION
The appeal is dismissed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Sanchez, J.