Opinion
E073920
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT PERRY, Defendant and Appellant.
Robert Perry, in pro. per.; and Christopher Nalls, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1300496) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Robert Perry, in pro. per.; and Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
In 2015, a jury convicted defendant and appellant Robert Perry of eight criminal charges: carjacking under Penal Code section 215, subdivision (a) (counts 1 & 2); making criminal threats under Penal Code section 422 (counts 3 & 4); witness intimidation under Penal Code section 136.1, subdivision (c)(1) (counts 5 & 6); and assault with a firearm under Penal Code section 245, subdivision (a)(2) (counts 7 & 8). Each count was subject to an enhancement for personal use of a firearm under Penal Code sections 12022.5, subdivision (a), and 12022.53, subdivision (b). On February 27, 2015, the trial court sentenced defendant to prison for 28 years eight months. Defendant appealed. On February 2, 2016, in an unpublished opinion in case No. E063225, we affirmed defendant's convictions and sentence.
In September of 2019, defendant filed a "motion to vacate and correct illegal sentence." In the motion, defendant argued that five of his six gun enhancements were unauthorized under Penal Code sections 12022.53, subdivision (f), and 654. On September 13, 2019, the trial court held a hearing regarding defendant's motion. The court noted that it had "read and considered the Ex-Parte Correspondence submitted by Defendant re: motion to vacate." The trial court denied defendant's request because it "is without jurisdiction to recall sentence." Thereafter, in October of 2019, defendant filed a "motion to reconsider and reinstate motion to vacate illegal sentence." On October 10, 2019, the trial court noted that it had "read and considered the Ex-Parte correspondence submitted by Defendant re: reconsider mtn to vacate sentence," and denied the motion.
On October 17, 2019, defendant filed his notice of appeal.
DISCUSSION
After defendant appealed, this court appointed counsel to represent defendant. 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 and a summary of the facts, and requesting this court to undertake a review of the entire record. Counsel acknowledged "that some justices have expressed a strong desire for listing issues under Anders v. California." However, counsel, after weighing the situation, "concluded the approach needed to promote the client's interests in this particular case is to invite court review of the record unfettered by counsel's prior thought processes."
We offered defendant an opportunity to file a personal supplemental brief. On February 24, 2020, defendant filed a four-page typewritten supplemental brief with attached exhibits. In essence, defendant appears to be arguing that the trial court erred in denying his motion to vacate his sentence because Penal Code 12022.53 was repealed in 2012. In support of his claim, defendant points to exhibit No. 4 attached to his brief. exhibit No. 4 is a photocopied page from Deering's California Codes Annotated showing the "history" of Penal Code section 12022.53. Next to the section are the words, "[Section repealed 2012.]." Based on these words, defendant argues that his gun-use enhancements were illegal because the statute was repealed. Defendant asked his appellate counsel about this alleged repeal of Penal Code section 12022.53. On December 30, 2019, appellate counsel responded aptly: "In your letter of December 4, you say that section 12022.53 was repealed in 2012. That did not happen. Section 12022.53 is alive and well, and has not been repealed. If you have access to a law library or any legal materials, look at any edition of the California Penal Code since 2012; you'll find section 12022.53 in there." It appears that defendant wrote his counsel again on January 12, 2020. Appellate counsel responded: "I received your letter of January 12. Let me try to answer your questions. [¶] Statutes are sometimes amended by the Legislature. Sometimes the amendments are substantial, though often they are minor. When a California statute is amended, research services (such as Deering's California Codes, Westlaw, LexisNexis, and so forth) often designate the amendment by saying that the old version was 'repealed' and the new version is now 'effective.' [¶] But that does not mean that the statute has gone away and no longer exists. It only means that the statute was amended. [¶] The terminology can be confusing, to be sure. But I assure you, Penal Code sections 12022.5 and PC 12022.53 are both still on the books. I am enclosing copies of the current versions; theses are the versions in effect today. At the bottom of each statute, you will see a history of each time it was amended." The relevant portions of Penal Code sections 12022.5 and 12022.53, as applicable to defendant's sentence, were never repealed. Therefore, the trial court properly denied defendant's motion.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.