People v. Ortiz CA2/6 ( 2021 )

Filed 4/19/21 P. v. Ortiz CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B295312
(Super. Ct. No. BA277399)
Plaintiff and Respondent, (Los Angeles County)
v.
DANIEL ORTIZ,
Defendant and Appellant.
Daniel Ortiz appeals an order denying his petition
pursuant to Penal Code1 section 12022.53, subdivision (h) to
strike a 25-year-to-life firearm enhancement. Because
subdivision (h) was not enacted until many years after the
judgment against Ortiz became final, the trial court had no
jurisdiction over the petition. We dismiss the appeal.
1 All statutory references are to the Penal Code.
FACTS
In August 2002, Ortiz shot a rival gang member multiple
times in the back as the victim was fleeing. The victim died of
his wounds. Ortiz was 15 years old at the time.
Ortiz was convicted by a jury of first degree murder (§§ 187,
subd. (a), 189) and two counts of unlawful possession of a firearm
(former § 12021, subd. (d)). The jury also found true a gang
enhancement (§ 186.22, subd. (b)(1)) and a firearm enhancement
(§ 12022.53, subd. (d)).
The trial court sentenced Ortiz to 25 years to life for first
degree murder and a consecutive 25 years to life on the firearm
enhancement pursuant to section 12022.53, subdivision (d). The
court also sentenced Ortiz to a consecutive one year eight months
on the remaining counts for a total of 51 years eight months to
life.
On September 18, 2008, we affirmed the judgment. (People
v. Ortiz (Sept. 18, 2008, B194337) [nonpub. opn.].)
Petition for Resentencing
In August 2018, Ortiz petitioned the trial court for
resentencing. He requested the trial court to exercise its
discretion to strike the firearm enhancement imposed pursuant
to section 12022.53, subdivision (d).
At the time Ortiz was sentenced, imposition of a sentence
under section 12022.53 was mandatory.
Effective January 1, 2018, the Legislature added
subdivision (h) to section 12022.53. That subdivision gives the
trial court the discretion to strike the section 12022.53 firearm
enhancement in the interest of justice.
The trial court considered the petition on its merits. The
court found that the aggravating circumstances, including Ortiz’s
2.
record of prison discipline, preponderate over the mitigating
circumstances, including Ortiz’s young age at the time of the
murder. The court denied the petition.
DISCUSSION
Ortiz contends the trial court abused its discretion in
denying his resentencing petition.
But Ortiz does not contest that at the time he was
sentenced, a 25-year-to-life sentence under section 12022.53,
subdivision (d) was mandatory. Nor does he contest that the
judgment in his case became final in 2008, long before the 2018
amendment granting the trial court the discretion to strike the
firearm enhancement.
The trial court’s newly granted discretion to strike a
firearm enhancement under section 12022.53, subdivision (h)
applies only to nonfinal judgments or to final judgments where
the defendant is being resentenced under some other law.
(People v. Baltazar (2020) 57 Cal.App.5th 334, 341.) Neither is
the case here. If the Legislature had wanted to provide a
procedure for reopening final cases for resentencing, it could have
done so. It did not. (Ibid.) The trial court lacked jurisdiction to
modify Ortiz’s sentence. (People v. Fuimaono (2019) 32
Cal.App.5th 132, 135.) Because the trial court lacked jurisdiction
to modify Ortiz’s sentence, the denial of Ortiz’s petition is not an
appealable order. (Ibid.) The appeal must be dismissed. (Ibid.)
3.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
4.
Stephen A. Marcus, Judge
Superior Court County of Los Angeles
______________________________
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
5.