People v. Gonzalez CA2/3 ( 2021 )


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  • 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
    3
    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.
    5
    

Document Info

Docket Number: B311010

Filed Date: 9/22/2021

Precedential Status: Non-Precedential

Modified Date: 9/22/2021