People v. Gonzalez CA2/3 ( 2021 )

Filed 9/22/21 P. v. Gonzalez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE, B311010
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA059902)
v.
MANUEL A. GONZALEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Connie R. Quinones, Judge. Appeal dismissed.
Jill Ishida, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Defendant and appellant Manuel A. Gonzalez appeals the
trial court’s order denying his request for modification of his
sentence and resentencing. We dismiss the appeal.
PROCEDURAL BACKGROUND
In August 2001, Gonzalez was convicted by a jury of
attempted murder (Pen. Code, §§ 664, 187, subd. (a))1 and assault
with a deadly weapon (§ 245, subd. (a)(1)). The jury also found
Gonzalez personally used a deadly or dangerous weapon (§ 12022,
subd. (b)(1)); inflicted great bodily injury on the victim (§ 12022.7,
subd. (a)); and had suffered a prior conviction for first degree
residential burglary, a serious felony (§ 667, subd. (a)(1)). The
court sentenced Gonzalez to a term of 23 years in prison, which
included terms of five years for the serious felony enhancement,
and three years for the great bodily injury enhancement. A
different panel of this Division affirmed the judgment in 2003.
(People v. Gonzalez (June 11, 2003, B157001) [nonpub. opn.].)
The California Supreme Court denied review on August 20, 2003,
and the remittitur issued on September 22, 2003.
In 2021, Gonzalez, acting in propria persona, filed a
document captioned “Motion to re-sentence strike
enhancement(s) five year, three year, due to L.A. County District
Attorney ‘retroactive criminal justice reforms policy changes
applies to current conviction expedite due to Covid, requested.’ ”
Therein, Gonzalez argued that his serious felony and great bodily
injury enhancements should be stricken, and he should be
resentenced, because the current Los Angeles County District
Attorney had purportedly announced “sweeping, retroactive
criminal justice reforms,” including an intent not to charge
1 All further undesignated statutory references are to the
Penal Code.
2
enhancements. This purported policy, Gonzalez argued, should
retroactively apply to him; his sentence should be modified by
striking the enhancements; and he should be immediately
released.
The trial court denied the motion on February 2, 2021,
reasoning: “The petitioner requests that the court modify his
sentence based solely on the Los Angeles County District
Attorney’s Special Directive 20-08 concerning enhancements and
allegations. [¶] The request is denied. To the extent that the
defendant is requesting a modification pursuant to [section]
1170(d), and more specifically, the District Attorney’s new
sentencing policy, he lacks standing to bring a motion pursuant
to this section.” After describing the jury’s verdicts and the
sentence imposed, the court stated: “It is contrary to the fair
administration of justice to now modify the sentence without a
legal basis.”
Gonzalez timely appealed the court’s ruling.
DISCUSSION
After review of the record, Gonzalez’s court-appointed
counsel filed an opening brief that raised no issues and averred
that the appeal was subject to People v. Serrano (2012) 211
Cal.App.4th 496.2 Appellant was advised that he had 30 days to
2 People v. Serrano, supra, 211 Cal.App.4th 496, concluded
that review under People v. Wende (1979) 25 Cal.3d 436, does not
apply to appeals from orders denying postconviction relief.
(Accord, People v. Cole (2020) 52 Cal.App.5th 1023, review
granted Oct. 14, 2020, S264278.) Cole, at pages 1039 to 1040,
held that an appeal from a postconviction order may be dismissed
if counsel has found no arguable issues and if the defendant has
not filed a supplemental brief. Our Supreme Court is currently
considering what procedures appointed counsel and the Courts of
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submit by brief or letter any contentions or argument he wished
this court to consider. We have received no response.
Denial of Gonzalez’s motion was proper because he failed to
cite any cognizable legal authority supporting his request.
Furthermore, the trial court’s order is nonappealable. The right
of appeal is statutory. Generally, once a judgment is rendered
and execution of the defendant’s sentence has begun, the trial
court lacks jurisdiction to vacate or modify the sentence. (People
v. Alexander (2020) 45 Cal.App.5th 341, 343; People v.
Torres (2020) 44 Cal.App.5th 1081, 1084; People v. Hernandez
(2019) 34 Cal.App.5th 323, 326–327.) “If the trial court does not
have jurisdiction to rule on a motion to vacate or modify a
sentence, an order denying such a motion is nonappealable, and
any appeal from such an order must be dismissed. [Citations.]”
(Torres, at p. 1084; People v. Fuimaono (2019) 32 Cal.App.5th
132, 135.)
Gonzalez’s judgment was final years ago. (See People v.
Buycks (2018) 5 Cal.5th 857, 876, fn. 5 [judgment is final when
the time for filing a petition for certiorari with the United States
Supreme Court has expired].) Absent some statutory authority
allowing for modification of Gonzalez’s sentence, the trial court
lacked jurisdiction to grant relief, and the appeal must be
dismissed.
Appeal should follow when counsel determines that an appeal
from an order denying postconviction relief lacks arguable merit.
(People v. Delgadillo (Nov. 18, 2020, B304441 [nonpub. opn.]),
review granted Feb. 17, 2021, S266305.) Pending further
guidance from our Supreme Court, and out of an abundance of
caution, we examine Gonzalez’s appeal under Wende.
4
We have examined the record, and are satisfied no arguable
issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 126; People
v. Wende, supra, 25 Cal.3d at pp. 441–442.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
HILL, J.*
* Judge of the Santa Barbara Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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