People v. Horton CA2/7 ( 2022 )

Filed 5/19/22 P. v. Horton CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B315189
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA104028)
v.
MICHAEL HORTON,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Allen J. Webster Jr., Judge. Affirmed.
David L. Polsky, under appointment by the Court of
Appeal; Michael J. Horton, in pro. per., for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Michael Horton was convicted in 2011 of two counts of
attempted deliberate, willful and premediated murder (Pen.
Code, §§ 187, subd. (a), 664)1 and one count of unlawful driving or
taking a vehicle (Veh. Code, § 10851, subd. (a)), with true
findings as to each count of attempted murder that the crimes
had been committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)) and as to one count that Horton had
personally discharged a firearm causing great bodily injury
(§ 12022.53, subd. (d)). He was sentenced as a second strike
offender to an aggregate indeterminate state prison term of
99 years to life, including a 25-year-to-life firearm-use
enhancement pursuant to section 12022.53, subdivision (d).
On September 16, 2021 the superior court denied Horton’s
postjudgment motion to strike the section 12022.53,
subdivision (d), firearm-use enhancement pursuant to Senate Bill
No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2) (Senate
Bill 620), effective January 1, 2018. No arguable issues relating
to this order have been identified following review of the record
by Horton’s appointed appellate counsel or by Horton in his
supplemental letter brief to this court. We also have identified no
arguable issues after our own independent review of the record.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Horton was convicted following a jury trial of one count of
attempted murder for shooting Travion Jackson on November 17,
2008 and a second count of attempted murder for stabbing a
fellow gang member with a knife on November 28, 2006. The
1 Statutory references are to this code unless otherwise
stated.
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unlawful taking of a vehicle charge arose from Horton’s
apprehension in Texas in December 2008 while driving a vehicle
owned by a California resident who had not given permission for
the vehicle to be taken or driven.
Horton appealed on numerous grounds. We conditionally
reversed the judgment on the attempted murder convictions and,
because the trial court had failed to comply with the procedures
required by Evidence Code section 1042, subdivision (d), directed
the court to hold a new hearing on Horton’s motion to disclose the
identity of a confidential informant. (People v. Horton (July 18,
2012, B230381) [nonpub. opn.].) Following the new hearing on
remand, the trial court denied the motion and reinstated the
judgment on the attempted murder convictions. Horton
challenged the judgment by filing both an appeal, contending the
trial court had again failed to comply with Evidence Code
section 1042, subdivision (d), and a petition for writ of habeas
corpus, arguing he was denied his Sixth Amendment rights at the
new hearing. After issuing an order to show cause and
considering the petition in conjunction with Horton’s second
appeal, we affirmed the judgment and denied the petition in a
nonpublished opinion. (People v. Horton (Mar. 20, 2014,
B246679); In re Horton (Mar. 20, 2014, B251537).)
On April 19, 2021 Horton, representing himself, filed a
motion for resentencing in the superior court pursuant to Senate
Bill 620, requesting the court exercise its discretion to strike or
dismiss the section 12022.53, subdivision (d), firearm-use
enhancement. Horton filed a supporting memorandum and,
following appointment of counsel, a supplemental memorandum
in support of the requested relief. The court held a hearing on
Horton’s motion on September 16, 2021. After argument from
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counsel and from Horton himself, the court denied the motion,
finding the nature of Horton’s offense—shooting a stranger
multiple times after making a gang challenge—did not warrant
the relief sought.
Horton filed a timely notice of appeal.
DISCUSSION
“Before January 1, 2018, section 12022.53 prohibited courts
from striking its enhancements. Former subdivision (h) of
section 12022.53 provided: ‘Notwithstanding Section 1385 or any
other provision of law, the court shall not strike an allegation
under this section or a finding bringing a person within the
provisions of this section.’ [Citation.] Thus, if a section 12022.53
enhancement was alleged and found true, its imposition was
mandatory. [Citations.] In 2017, the Legislature enacted Senate
Bill No. 620 . . . amending section 12022.53(h) to remove this
prohibition. [Citation.] Section 12022.53(h) now provides that a
‘court may, in the interest of justice pursuant to Section 1385 and
at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section.’” (People v.
Tirado (2022) 12 Cal.5th 688, 695-696.)
Senate Bill 620’s amendment to section 12022.53,
subdivision (h), does not apply to individuals whose cases were
final on appeal before its January 1, 2018 effective date. (People
v. Magana (2021) 63 Cal.App.5th 1120, 1126-1127; People v.
Humphrey (2020) 44 Cal.App.5th 371, 380; People v. Hernandez
(2019) 34 Cal.App.5th 323, 326.) Horton’s conviction was final
several years before Senate Bill 620’s effective date, following his
second appeal in 2014 and the expiration of the time for him to
seek further review in the California and United States Supreme
Courts. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“for the
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purpose of determining retroactive application of an amendment
to a criminal statute, a judgment is not final until the time for
petitioning for a writ of certiorari in the United States Supreme
Court has passed”]; see generally In re Estrada (1965) 63 Cal.2d
740, 744 [“[i]f the amendatory statute lessening punishment
becomes effective prior to the date the judgment of conviction
becomes final then, in our opinion, it, and not the old statute in
effect when the prohibited act was committed, applies”].)
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Horton on appeal.
After reviewing the record, appointed counsel filed a brief raising
no issues. Appointed counsel advised Horton on April 13, 2022
that he could submit a brief or letter raising any grounds of
appeal, contentions or arguments he wanted the court to
consider.
On May 9, 2022 we received a 13-page handwritten
supplemental brief, with exhibits, in which Horton argued the
judge at the hearing on his motion—the same judge who had
presided at Horton’s trial—exhibited ethnic bias, violating his
due process rights. While we agree with Horton that some of the
court’s comments may have been inappropriate,2 as discussed,
2 During an extended colloquy with Horton, the court
commented, “Knowing Senate Bill 620—and I call it 620, the
Steve Bradford bill, because he’s a senator and he’s a friend of
mine. I know what he had in mind when he basically passed this
law. It’s for kids who had a gun and they somehow didn’t have a
record. This particular kid was on his way to Yale or someplace
and somehow got mixed up in some, you know, subculture
activity which resulted in basically the enhancement being filed.
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because his conviction was long-since final, Horton was not
entitled, as a matter of law, to the benefits of Senate Bill 620’s
amendment to section 12022.53, subdivision (h). Accordingly, the
court’s discussion of its understanding of the purpose of Senate
Bill 620 or the status of Horton’s rehabilitative efforts in prison
was entirely beside the point. Error, if any, was necessarily
harmless.
In his supplemental brief Horton also asserted he is
entitled to the benefit of other recent legislation amending
California’s sentencing laws, including Senate Bill No. 1393
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, § 1), effective
January 1, 2019, which gave the superior court discretion not to
impose a prior serious felony enhancement pursuant to
section 667, subdivision (a)(1), and Assembly Bill No. 333 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 699), effective January 1, 2022,
which increased the proof requirements for true findings on
criminal street gang enhancement allegations under
section 186.22. Because Horton’s judgment was final before the
effective date of these ameliorative changes to California law, he
will confront the same issue of retroactivity as he did with Senate
Bill 620. In any event, any request for resentencing relief under
the legislation identified in Horton’s supplemental brief must be
made in the superior court in the first instance.
Because no cognizable legal issues have been raised by
Horton’s appellate counsel or by Horton or identified in our
independent review of the record, the order denying the motion
for resentencing is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
That’s when Bradford came up with the 620 bill for kids like that.
But this is not Mr. Horton.”
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v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order denying Horton’s motion is
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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