People v. Djissa CA2/1 ( 2020 )

Filed 12/22/20 P. v. Djissa CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B306152
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA074001)
v.
HENRIMICHEL DJISSA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
On July 9, 2019, appellant HenriMichel Djissa pleaded no
contest to one count of assault with a semiautomatic firearm
pursuant to Penal Code section 245, subdivision (b).1 He
admitted an allegation that he personally inflicted great bodily
injury in the commission of the offense, pursuant to section
12022.7, subdivision (a); and an allegation that he personally
used a firearm, pursuant to section 12022.5, subdivisions (a)
and (d). Djissa waived time for sentencing. The trial court
sentenced him the same day to a total of nine years in state
prison, consisting of the low term of three years for the assault
charge, a consecutive term of three years for the great bodily
injury enhancement, and a consecutive term of three years for
the personal use of a firearm.
On March 25, 2020, Djissa filed a motion for modification of
his sentence in the trial court. He argued that he should be
resentenced pursuant to amendments to the Penal Code enacted
by Senate Bill No. 620, which authorized the trial court to strike
certain firearm enhancements. The trial court construed the
motion as a motion to recall the sentence under section 1170,
subdivision (d). The trial court denied the motion on the
following grounds: the motion was not timely filed within 120
days of sentencing; Senate Bill No. 620 did not create an
independent right to resentencing; Djissa failed to identify
another law that entitled him to resentencing; and Djissa waived
any such claim by entering into a plea agreement to resolve his
case.
Djissa timely appealed the trial court’s denial of his motion.
We appointed counsel for Djissa, who filed a brief raising no
1 Statutory references are to the Penal Code.
2
issues and requesting that we follow the procedures set forth in
People v. Serrano (2012) 211 Cal.App.4th 496. We sent a letter to
Djissa advising that he could submit a supplemental brief raising
any issues he wanted us to consider, and directing counsel to
send the record and opening brief to Djissa. In response, Djissa
timely filed a supplemental brief.
DISCUSSION
Djissa argues that he is entitled to relief pursuant to
Senate Bill No. 620, which authorizes the trial court to exercise
its discretion to strike or dismiss the personal use enhancement
imposed under section 12022.5. He seeks an order that the trial
court apply this amendment and resentence him.
Senate Bill No. 620 amended section 12022.5 to authorize a
trial court to strike or dismiss a firearm enhancement “at the
time of sentencing.” (§ 12022.5, subd. (c).) The amendment was
effective as of January 1, 2018, well before Djissa entered his plea
and was sentenced in July 2019. (People v. Hurlic (2018) 25
Cal.App.5th 50, 54.) Djissa does not cite a legal basis for the trial
court to consider the application of the amendment in post-
conviction proceedings. His reliance on Hurlic is misplaced, as
the facts and circumstances of that case have no application here.
(See id. at p. 53 [considering appeal by the defendant who
pleaded no contest prior to the enactment of Senate Bill
No. 620].) Moreover, his no contest plea forecloses review of his
sentence on the grounds he raises here. (See § 1237.5, subd. (a)
[following entry of a plea of guilty or no contest, no appeal shall
be taken unless the defendant shows “reasonable constitutional,
jurisdictional, or other grounds going to the legality of the
proceedings”]; People v. Mendez (1999) 19 Cal.4th 1084, 1094 [a
defendant generally may not take an appeal following entry of a
3
plea of guilty or no contest “except on grounds going to the
legality of the proceedings, including the validity of his plea”].)
There are no facts in the record to suggest that the trial
court or counsel concluded that the amendment to section
12022.5 was not applicable to Djissa’s case, or that Djissa was so
advised.
We also note that to the extent that Djissa’s request for
relief can be construed as a motion to recall the sentence, a trial
court may recall a sentence on its own motion within 120 days of
sentencing. (§ 1170, subd. (d)(1).) Section 1170, subdivision (d),
does not authorize a defendant to initiate a sentence recall
proceeding in the trial court. (People v. Loper (2015) 60 Cal.4th
1155, 1165.) Thus, Djissa’s motion before the trial court was both
untimely and procedurally improper.
We are satisfied that Djissa’s counsel has fulfilled his
responsibilities (see People v. Cole (2020) 52 Cal.App.5th 1023,
1038-1039, review granted Oct. 14, 2020, S264278), and conclude
that the appeal raises no arguable issues.
4
DISPOSITION
The trial court’s April 20, 2020, order denying Djissa’s
motion to recall his sentence under section 1170, subdivision (d)
is affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
5