People v. Hernandez ( 2019 )

Filed 4/15/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B287551
(Super. Ct. No. 2011033571)
Plaintiff and Respondent, (Ventura County)
v.
SALVADOR HERNANDEZ,
Defendant and Appellant.
Salvador Hernandez appeals from the trial court’s
order denying his motion to strike personal firearm
enhancements (Pen. Code, 1 § 12022.5, subds. (a) & (d)) that were
imposed pursuant to a judgment that became final before the
motion was filed. We conclude the challenged order is not
appealable and accordingly dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
In October 2016, Hernandez pled guilty to two counts
of assault with a semiautomatic firearm (§ 245, subd. (b)). He
also admitted that he personally inflicted great bodily injury in
committing one of the assaults (§ 12022.7), and personally used a
1 All further statutory references are to the Penal Code.
firearm in committing both offenses (§ 12022.5, subds. (a) & (d)).
The trial court sentenced him to nine years in state prison. The
sentence includes one consecutive and one concurrent three-year
term for the personal firearm use enhancements.
Hernandez appealed his sentence and we affirmed.
(People v. Hernandez (Aug. 14, 2017, B280231) [nonpub. opn.].)
He did not seek further review and the remittitur was issued on
November 16, 2017.
On December 15, 2017, Hernandez filed a motion in
the trial court seeking to strike the firearm enhancements on the
grounds that (1) in accepting his guilty plea the trial court
erroneously referred to subdivision (b) of section 12022.5 rather
than subdivision (d); and (2) subdivision (d) only applies to
assaults with a firearm committed by means of a drive-by
shooting. The motion was heard and denied on January 8, 2018.
Hernandez filed a timely notice of appeal.
DISCUSSION
Hernandez does not challenge the trial court’s rulings
on either of the claims raised in his postjudgment motion to
strike his firearm enhancements. Instead, he contends the
matter must be remanded for resentencing pursuant to Senate
Bill No. 620, which amended section 12022.5 to give trial courts
discretion to strike firearm enhancements in the interests of
justice. Although those amendments went into effect shortly
before Hernandez’s motion was heard, he claims the issue “is
preserved for appeal” because “[o]nly after the January hearing[]
did the courts decide the retroactivity of the new amendments.”
He alternatively claims that trial counsel provided ineffective
assistance by failing to raise the issue below.
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The People respond that the challenged order is not
appealable. We agree. “‘It is settled that the right of appeal is
statutory and that a judgment or order is not appealable unless
expressly made so by statute.’ [Citations.]” (People v. Mazurette
(2001) 24 Cal. 4th 789, 792.) “An order made after judgment
affecting a defendant’s substantial rights is appealable. (§ 1237,
subd. (b).) However, once a judgment is rendered, except for
limited statutory exceptions (§§ 1170.126, 1170.18), the
sentencing court is without jurisdiction to vacate or modify the
sentence, except pursuant to the provisions of section 1170,
subdivision (d). [Citation.] Section 1170, subdivision (d), allows a
sentencing court on its own motion to recall and resentence,
subject to the express limitation that the court must act to recall
the sentence within 120 days after committing the defendant to
prison. [Citation.] Indeed, ‘the court loses “own-motion”
jurisdiction if it fails to recall a sentence within 120 days of the
original commitment. [Citations.]’ [Citation.]” (People v.
Fuimaono (2019) 32 Cal.App.5th 132, 134.)
Judgment was rendered against Hernandez on
November 28, 2016. That judgment became final on November
16, 2017. Hernandez filed his motion on December 15, 2017.
Because the court lacked jurisdiction to grant the relief requested
in Hernandez’s motion, the order denying the motion did not
affect his substantial rights as contemplated in section 1237,
subdivision (b). (People v. Turrin (2009) 176 Cal. App. 4th 1200,
1208.) The claims raised in the motion also could have been
raised on direct appeal from the judgment. (See People v. Totari
(2002) 28 Cal. 4th 876, 882 [recognizing that “ordinarily, no
appeal lies from an order denying a motion to vacate a judgment
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of conviction on a ground which could have been reviewed on
appeal from the judgment”].)
Moreover, even assuming that Hernandez did not
forfeit his claim regarding Senate Bill No. 620, the new law does
not apply retroactivity to cases that became final. (People v.
Johnson (2019) 32 Cal.App.5th 938.) In contending otherwise,
Hernandez relies upon subdivision (c) of section 12022.5, which
states: “The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” In
emphasizing the reference to “any resentencing,” however,
Hernandez fails to give effect to the limitation which follows, i.e.,
that Senate Bill No. 620 applies only to any resentencing “that
may occur pursuant to any other law.” Because Hernandez has
not been resentenced pursuant to any other law, this limited
exception is not applicable here.
Hernandez also contends that the failure to apply full
retroactivity to Senate Bill No. 620 would result in an equal
protection violation. A similar argument was rejected in In re
Kapperman (1974) 11 Cal. 3d 542, 546, in which our Supreme
Court stated that statutes lessening the punishment for specific
offenses could be limited to prospective application in order “to
assure that penal laws will maintain their desired deterrent
effect by carrying out the original prescribed punishment as
written.” Senate Bill No. 620 is an example of this principle.
For these reasons, we agree with our colleagues in
the Third Appellate District that Senate Bill No. 620 “does not
contain language authorizing resentencing of convictions after
they became final. And absent any new authority to resentence
[Hernandez] under Senate Bill No. 620, the trial court lacked
jurisdiction to grant [Hernandez’s] resentencing request.
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[Citation.] Because the trial court lacked jurisdiction to modify
[Hernandez’s] sentence, denial of his motion to modify his
sentence could not have affected his substantial rights.
[Citation.]” (People v. Fuimaono, supra, 32 Cal.App.5th at p.
135.) Accordingly, the appeal must be dismissed. (Ibid.)
DISPOSITION
The appeal is dismissed.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Michael Lief, Judge
Superior Court County of Ventura
______________________________
Arielle Bases, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.