Opinion
H050187
01-19-2023
THE PEOPLE, Plaintiff and Respondent, v. JONAH KALEIKAUMAKA NAMAUU, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F28398
THE COURTDefendant Jonah Kaleikaumaka Namauu appeals from two orders denying his petitions for resentencing pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Assembly Bill No. 1869 (2019-2020 Reg. Sess.). For the reasons set forth below, we affirm the orders.
The facts of the offense are not relevant to the analysis and disposition of the appeal and therefore we have omitted them.
After a jury trial, Namauu was convicted of one count of first degree murder (Pen. Code, § 187), with the special circumstance of intentional murder by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)); shooting at an occupied vehicle (§ 246); shooting from a vehicle (§ 26100, subd. (d)); assault with a firearm (§ 245, subd. (a)(2)); participation in a criminal street gang (§ 186.22, subd. (a)); possession of a firearm by a felon (§ 29800, subd. (a)(1)); and possession of ammunition by a prohibited person (§ 29800, subd. (a)(1)). The jury also found true firearms enhancements under sections 12022.5 and 12022.53 as to several counts of conviction. After Namauu waived his right to a jury trial as to allegations related to his prior convictions, the trial court found true allegations regarding Namauu's prior conviction for a serious felony (§ 667, subd. (a)(1)), prior strike conviction (§ 667, subds. (b)-(i)), and prior prison term (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code.
The trial court sentenced Namauu on August 7, 2018, to an aggregate term of 23 years plus life without the possibility of parole, which included a five-year term based on the prior serious felony enhancement. (§ 667, subd. (a)(1).) The court imposed and struck the punishment for the firearms enhancements, and it imposed and stayed a one-year prior prison term enhancement under section 667.5, subdivision (b). The trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), a $280 court operations assessment (§ 1465.8), and a $210 conviction assessment (Gov. Code, § 70373), and it also imposed and stayed a $10,000 parole revocation fine under section 1202.45.
Namauu appealed the judgment, raising numerous challenges to his conviction and sentence. This court reversed the judgment, ruling that under Senate Bill No. 136 (20192020 Reg. Sess.) remand was necessary for the trial court to consider, in its discretion, whether to dismiss the enhancement it imposed under section 667, subdivision (a). This court rejected Namauu's additional challenges to his conviction and sentence, including his contention that under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), his due process rights were violated by the trial court's failure to conduct a hearing on his ability to pay the fines and fees imposed by the court at sentencing. (People v. Namauu (Apr. 19, 2021, H046070) [nonpub. opn.] .)
On October 14, 2021, the trial court resentenced Namauu, and it once again imposed the 5-year term on the prior serious felony enhancement. Namauu did not appeal the amended judgment.
On May 18, 2022, Namauu filed two petitions for resentencing in the trial court. In the first petition, made under section 1170.95 (now renumbered as section 1172.6), as effected by Senate Bill No. 1437, Namauu sought retroactive relief based on the changes made to the law regarding the felony murder rule and the natural and probable consequences doctrine. The second petition asked for a modification of the restitution fine, the court operations assessment, and the conviction assessment based on Assembly Bill No. 1869 and Duenas.
On June 28, 2022, the trial court issued orders denying both petitions. Namauu timely appealed from the trial court's orders.
On appeal, this court appointed counsel to represent Namauu. Counsel then filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436. On September 30, 2022, we informed Namauu that we would review his appeal pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), and notified him that he could file a supplemental brief on his own behalf, and that failure to do so would result in the dismissal of the appeal as abandoned. (People v. Delgadillo (2022) 14 Cal.5th 216, 232.) On October 5, 2022, Namauu filed a supplemental brief raising two issues.
Namauu has also filed a petition for habeas corpus, case number H050189. We will dispose of that petition separately.
On October 25, 2022, this court issued an order dismissing the appeal on the basis that Namauu's supplemental brief failed to raise any arguable issues on appeal. On October 31, 2022, counsel for Namauu filed a petition for rehearing, asking the court to substantively address the merits of the claims addressed in Namauu's supplemental brief. On November 10, 2022, this court issued an order deeming the petition for rehearing a request to set aside the dismissal, and granted it as such. We now address the claims raised by Namauu in his supplemental brief.
There were no fees imposed at Namauu's resentencing that are eligible to be stricken pursuant to the changes effected by Assembly Bill No. 1869.
II. Discussion
Namauu raises two arguments in his supplemental brief. Namauu first contends that he "wants to add to the appeal" that the $10,000 parole revocation fine in his case is invalid because he is ineligible for parole due to his sentence to life without parole. Second, Namauu argues that because his sentence was modified on October 14, 2021, he is entitled to retroactive relief under Assembly Bill No. 333 (2021-2022 Reg. Sess.), Senate Bill No. 81 (2021-2022 Reg. Sess.), and Senate Bill No. 567 (2021-2022 Reg. Sess.), all three of which went into effect on January 1, 2022.
Namauu does not raise an arguable issue on appeal. An issue is arguable if it has a reasonable potential for success, and, if resolved favorably for the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
Namauu's contentions are not cognizable on appeal because he failed to raise either of these arguments in his petitions below. Arguments not raised in the trial court are forfeited on appeal. (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 670.)
In addition, because the amended judgment in his case was final before he filed the petitions, Namauu is not eligible for relief from changes effected by Assembly Bill No. 333 or Senate Bill No. 567, as those are only applicable to nonfinal convictions on appeal. (People v. Boukes (2022) 83 Cal.App.5th 937, 946; People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) He is similarly ineligible for relief under Senate Bill No. 81 because the changes effected by it apply only to sentences that occurred after January 1, 2022. (People v. Sek (2022) 74 Cal.App.5th 657, 674.)
Because Namauu raises no arguable issues in his supplemental brief, we must affirm the orders. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
III. Disposition
The June 28, 2022 orders are affirmed.