Opinion
A155956
12-02-2019
THE PEOPLE, Plaintiff and Respondent, v. ERIC JOVAN ZAMORA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC067485A)
Eric Jovan Zamora was a minor when he committed assault with a firearm (Penal Code § 245, subd. (a)(2)) and active participation in a criminal street gang (§ 186.22, subd. (a)) but was tried, in 2009, as an adult. After his judgment became final, the voters enacted The Public Safety and Rehabilitation Act of 2016 (Gen. Elec. (Nov. 8, 2016), Initiative Measure Prop. 57, eff. Nov. 9, 2016) (Proposition 57), which eliminated direct charging of juvenile offenders in adult criminal court. (See Welf. & Inst. Code, §§ 602, 707, subds. (a), (b); People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.) Zamora appeals from a post judgment order in which the trial court declined to recall his sentence pursuant to section 1170, subdivision (d)(1). He argues the trial court erred in denying his requests for a transfer hearing before the juvenile court and, in the alternative, resentencing to take his youth into account. We conclude the trial court lacked jurisdiction to consider Zamora's arguments and dismiss the appeal.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
A.
Ordinarily, a trial court lacks jurisdiction to alter a defendant's sentence once execution of the sentence has begun. (People v. Karaman (1992) 4 Cal.4th 335, 344.) Section 1170, subdivision (d)(1) provides a limited exception. (Dix v. Superior Court (1991) 53 Cal.3d 442, 455 (Dix).) Pursuant to section 1170, subdivision (d)(1), a trial court "may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary . . . , recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (Italics added.)
B.
In 2009, Zamora was convicted by a jury of assault with a firearm (§ 245, subd. (a)(2); count two). As to that count, the jury found true allegations that he personally used a firearm (§ 12022.5, subd. (a)), personally inflicted great bodily injury (§ 12022.7, subd. (a)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury also convicted him of active participation in a criminal street gang (§ 186.22, subd. (a); count three) and found true an enhancement allegation that he personally used a firearm (§ 12022.5, subd. (a)(1)) in connection with that offense. The trial court sentenced him to prison for an aggregate term of 20 years.
Zamora appealed. In an unpublished decision (People v. Zamora (Oct. 17, 2011, A127468)), this court concluded the sentence imposed for Zamora's conviction on count three must be stayed under section 654 and that, with respect to count two, imposition of both a four-year term for the firearm use enhancement (§ 12022.5, subd. (a)) and a 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)(C)) violated section 1170.1, subdivision (f). Accordingly, this court remanded for resentencing and otherwise affirmed the judgment.
In 2012, Zamora was resentenced to an aggregate prison term of 16 years, comprised of a three-year term on count two (the principal term), a consecutive three- year term for the great bodily injury enhancement, and a consecutive ten-year term for the gang enhancement. The sentence on count three was stayed.
C.
Six years later, the Secretary of the Department of Corrections and Rehabilitation (Secretary) notified the trial court of a possible sentencing error, in connection with count two, and recommended recall of Zamora's sentence under section 1170, subdivision (d). Specifically, the Secretary asked the trial court to consider whether imposition of sentence enhancements under both section 12202.7, subdivision (a) and section 186.22, subdivision (b)(1)(C) violated People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez).
The trial court requested briefing on that question from counsel. In addition to addressing the Gonzalez question, defense counsel argued Zamora should receive the benefit of the intervening passage of Proposition 57. Defense counsel requested a transfer hearing before the juvenile court and, in the event the matter was returned to adult court, striking of the gang enhancement (pursuant to § 186.22, subd. (g)) in consideration of Zamora's youth.
On November 14, 2018, the trial court concluded the charges and enhancements for which Zamora was convicted distinguished Zamora's case from Gonzalez. The court made clear it was not recalling his sentence and notified the Secretary. The trial court made no further orders. Zamora filed a notice of appeal, stating he was appealing from the trial court's November 14 order "refus[ing] to refer to Juvenile Div. after remand per [section] 1170(d) and den[ying] relief."
DISCUSSION
Zamora concedes Gonzalez, supra, 178 Cal.App.4th 1325 does not disturb his sentence. Instead, he maintains the Secretary's recommendation vested the trial court with the power to consider his requests for a transfer hearing or resentencing to take his youth into account and that the trial court erred in refusing to do so. The People argue we lack jurisdiction to consider Zamora's appeal because he has not appealed from a post judgment order affecting his substantial rights. (See § 1237, subd. (b).) We agree with the People.
1.
"The right to appeal is statutory only, and a party may not appeal a trial court's judgment, order or ruling unless such is expressly made appealable by statute." (People v . Loper (2015) 60 Cal.4th 1155, 1159 (Loper).) Section 1237, subdivision (b), authorizes an appeal "[f]rom any order made after judgment, affecting the substantial rights of the party."
2.
Zamora relies on Loper to support his argument he appealed from a post judgment order affecting his substantial rights. Loper held that "when [a recall for compassionate release (§ 1170, subd. (e))] proceeding is properly initiated by prison or parole authorities as required by law, the trial court's decision [denying that recall recommendation] produces an appealable order that may be appealed by the prisoner." (Loper at p. 1158, italics added.) In other words, "a defendant may appeal an adverse decision on a postjudgment motion or petition if it affects his substantial rights, even if someone else brought the original motion." (Loper, supra, 60 Cal.4th at p. 1165, italics added.)
Loper is distinguishable. In Loper, the trial court had jurisdiction to act on a compassionate release recall petition because "the Secretary recommended that defendant's sentence be recalled for medical reasons, as authorized by statute [§ 1170, subd. (e)]." (Loper, supra, 60 Cal.4th at p. 1166.) "The trial court's denial of compassionate release was an order made after judgment that affected defendant's substantial rights. Accordingly, his appeal was authorized by section 1237, subdivision (b)." (Id at p. 1168.)
Here, too, the trial court had jurisdiction to act on the Secretary's statutorily authorized recommendation to recall, as authorized by section 1170, subdivision (d). However, Zamora is not challenging the trial court's denial of such relief. Zamora attacks only the trial court's refusal to grant the relief defense counsel requested in a brief filed in 2018 - considerably more than 120 days after he was resentenced in 2012.
Zamora's appeal must be dismissed because the trial court had no jurisdiction to grant his requested relief more than 120 days after his resentencing. Accordingly, the challenged ruling could not have affected his substantial rights. (Loper, supra, at p. 1165; People v. Chlad (1992) 6 Cal.App.4th 1719, 1726.) Loper explains the distinction: "In both People v. Chlad, supra, 6 Cal.App.4th 1719, and People v. Gainer [(1982)] 133 Cal.App.3d 636, the defendants requested resentencing by invoking section 1170(d) but did so more than 120 days after the date of commitment. The trial court in each case properly denied the motion for lack of jurisdiction because section 1170(d) provides that the trial court loses jurisdiction to resentence on its own motion after 120 days has elapsed. [Citation.] Because the trial courts in Chlad and Gainer had no jurisdiction to resentence on their own motion, their refusal to act on a defective defense motion for resentencing could not have affected any legal rights the defendants in those cases possessed, and the appellate courts properly dismissed the appeals." (Loper, supra, 60 Cal.4th at pp. 1165-1166.)
Zamora mistakenly relies on Dix for the proposition that a recall recommendation from the Secretary automatically vests the trial court with jurisdiction to resentence the defendant for any reason. In Dix, the trial court invoked section 1170, subdivision (d), on its own motion within the 120-day time limit and ordered the defendant's sentence recalled based on his new offer to testify in another case. (Dix, supra, 53 Cal.3d at p. 449.) In rejecting the victim's argument that section 1170, subdivision (d) could only be used to correct a disparate sentence (id. at pp. 447-450, 455), our Supreme Court held: "[S]ection 1170(d) permits the sentencing court to recall a sentence for any reason which could influence sentencing generally, even if the reason arose after the original commitment. The court may thereafter consider such reason in deciding upon a new sentence [and] . . . impose any new sentence that would be permissible . . . if the resentence were the original sentence." (id., at p. 463, fn. omitted, italics added.) Unlike in Dix, Zamora's sentence was not recalled.
3.
Even if we assume, for the sake of argument, the challenged order is appealable, Zamora has shown no error.
When the trial court receives a letter from the Secretary recommending recall of a sentence, pursuant to section 1170, subdivision (d)(1), the trial court is not required to follow that recommendation. (People v. Abdullah (2019) 38 Cal.App.5th 218, 224-225; People v . Delson (1984) 161 Cal.App.3d 56, 62-63.) When the trial court does not order a defendant's sentence recalled, it is "not required to 'resentence [him] in the same manner as if he . . . had not previously been sentenced.' " (People v. Abdullah, supra, 38 Cal.App.5th at p. 225.)
Here, as in Abdullah, the trial court made clear it was not recalling Zamora's sentence, and thus he was not entitled to resentencing "as if he . . . had not previously been sentenced." (§ 1170, subd. (d)(1).) Accordingly, contrary to Zamora's implicit assertion, his judgment remained final, and he was not entitled to retroactive relief under Proposition 57. (See People v. Superior Court (Lara), supra, 4 Cal.5th at p. 304 ["Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted"]; People v. Barboza (2018) 21 Cal.App.5th 1315, 1318-1319.)
DISPOSITION
The appeal is dismissed.
/s/_________
BURNS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.