Opinion
E075291
12-07-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM EMMON MITCHELL, Defendant and Appellant.
William Emmon Mitchell, in pro. per., and Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI800247) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Dismissed. William Emmon Mitchell, in pro. per., and Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
In February 2008, a felony complaint charged defendant and appellant William Emmon Mitchell and codefendant David Alexander Johnson with robbery under Penal Code section 211 (count 1); kidnapping to commit another crime under section 209, subdivision (b)(1) (count 2); first degree burglary under section 459 (count 3); false imprisonment by violence under section 236 (count 4); assault with a firearm under section 245, subdivision (a)(2) (count 5); and criminal threats under section 422 (count 6). The complaint also charged defendant with street terrorism under section 186.22, subdivision (a) (count 7). Additionally, the complaint alleged: (1) as to counts 1 and 2 that defendant and a principal personally used a handgun under section 12022.53, subdivisions (b) and (e)(1); (2) as to counts 1 through 6 that the offenses were committed for the benefit of, at the discretion of, or in association with a criminal street gang under section 186.22, subdivision (b)(1)(C); (3) as to counts 3 through 6 that defendant personally used a firearm under sections 1203.06, subdivision (a)(1), and 12022.5, subdivision (a).
Codefendant Johnson is not a party to this appeal.
All further statutory references are to the Penal Code unless otherwise specified --------
On March 5, 2008, the parties entered into a plea agreement. Counts 8 and 9 under section 245, subdivision (a)(1), were added to the complaint. Thereafter, defendant pled no contendere to counts 1, 8 and 9. Defendant also admitted an enhancement allegation under section 12022.53, subdivision (b), as to count 1. The court dismissed counts 2 through 7, and the other enhancement allegations under sections 12022.53 and 186.22 as to count 1. Thereafter, the court sentenced defendant to a total prison term of 18 years as follows: (1) midterm of six years on count 1; (2) 1 year each, consecutive, for counts 8 and 9; and (3) 10 years consecutive on the firearm-use enhancement.
On August 19, 2019, defendant filed a motion to modify his sentence under section 12022.53, subdivision (h). On June 18, 2020, the People filed opposition to defendant's motion. The People stated that defendant failed to raise "any applicable authority to reduce his sentence," citing People v. Johnson (2019) 32 Cal.App.5th 938. At the hearing on the motion on June 19, 2020, the trial court denied defendant's motion. The court stated, "I don't think that would be something that the Court would have the authority to do. But in any event it wouldn't be my inclination to do so."
On July 2, 2019, defendant filed a timely notice of appeal.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and has requested this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issues to assist the court in its search of the record for error:
(1) "Does Senate Bill 620 Apply Retroactively?"
(2) "Is Appellant Entitled To Resentencing Due To Disregard Of The Court's Recommendation For Fire Camp?"
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. Defendant has filed a seven-page typewritten response with attachments totaling 80 pages.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3rd at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744.) We have reviewed defendant's supplemental brief and note that it is almost identical to his motion to modify sentence filed in the trial court, and does not provide us with any new arguments as to why the trial court erred in denying his motion. Moreover, we have reviewed the documents attached to defendant's brief and commend the efforts and progress defendant has made while incarcerated. However, newly amended section 12022.53, subdivision (h), does not apply where, as here, the defendant's sentence was final before the section came into effect. (See People v. Hargis (2019) 33 Cal.App.5th 199, 209.) The judgment became final when the time to petition the United States Supreme Court for writ of certiorari expired. (People v. Harris (2018) 22 Cal.App.5th 657, 659, fn. 2.)
In this case, defendant's judgment, which he did not appeal, became final long before Sen. No. 620 amended section 12022.53. The trial court accordingly lacked jurisdiction to consider it. As such, defendant's substantial rights were not affected and the order denying the petition is not appealable; hence, the appeal must be dismissed. (See People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; People v. Johnson, supra, 32 Cal.App.5th at p. 941.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: RAPHAEL
J. MENETREZ
J.