People v. Devore CA2/2 ( 2022 )

Filed 8/1/22 P. v. Devore CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B317668
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA135565)
v.
JASON EDWIN DEVORE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Mildred Escobedo, Judge. Reversed and
remanded with directions.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Jason Edwin Devore appeals from the summary denial of
his petition for resentencing pursuant to Senate Bill No. 620
(2017–2018 Reg. Sess.), which gave trial courts discretion to
strike or dismiss, in the interest of justice, certain firearm
enhancements alleged under Penal Code1 sections 12022.5 and
12022.53. Although appellant’s conviction was not yet final on
January 1, 2018, when Senate Bill No. 620 became effective
(Stats. 2017, ch. 682, §§ 1–2), the conviction was final by the time
appellant sought resentencing in 2021. The superior court
therefore lacked jurisdiction to entertain appellant’s resentencing
petition, and the order denying it is not appealable.
However, considering the appeal from this order as a
petition for writ of habeas corpus (see People v. Segura (2008) 44
Cal.4th 921, 928, fn. 4 (Segura) [treating appeal as a petition for
writ of habeas corpus in the interest of judicial economy]), we
reach the merits of the issues presented and conclude that
appellant is entitled to seek the benefits of the changes to the
sentencing laws made by Senate Bill No. 620. We therefore
remand the matter to the trial court for consideration of whether
to exercise its discretion under Senate Bill No. 620.
BACKGROUND
Following a jury trial in 2016, appellant was convicted of
15 counts of robbery (§ 211) and five counts of assault on a peace
officer (§ 245, subd. (d)(2)). The jury found true personal firearm
use allegations (§§ 12022.53, subd. (b), 12022.5, subds. (a) & (d))
on all of the assault counts, and also found true the personal
discharge of a firearm allegation (§ 12022.53, subd. (c)) on three
of the assault counts. Appellant was sentenced to state prison for
1 Undesignated statutory references are to the Penal Code.
2
a term of 111 years 8 months,2 which included 40 years for the
firearm enhancements (§ 12022.53, subds. (b) & (c)) and a five-
year enhancement for a prior serious felony conviction (§ 667,
subd. (a)(1)). This court affirmed the judgment of conviction and
sentence in an unpublished opinion. (People v. Jason E. Devore
(July 27, 2017, B276539) [nonpub. opn.] (Devore).)
On May 3, 2021, appellant filed his petition for
resentencing in the trial court pursuant to Senate Bill No. 620’s
amendments to sections 12022.5 and 12022.53 and pursuant to
the policy changes instituted by the new district attorney in Los
Angeles County. On May 6, 2021, the trial court summarily
denied appellant’s petition on the ground that the judgment in
his case is final, and there is no independent right to
resentencing in final cases under Senate Bill No. 620. The trial
court further ruled that the district attorney’s policy changes
could not be implemented except upon an eligible entity’s filing of
a recall motion.
DISCUSSION
1. Senate Bill No. 620 applies to nonfinal judgments as of the
effective date of the legislation.
When appellant was sentenced in 2016, the trial court had
no authority to strike firearm enhancements proven under
sections 12022.5 and 12022.53. (People v. Arredondo (2018) 21
Cal.App.5th 493, 506; former §§ 12022.5, subd. (c), 12022.53,
subd. (h).) Senate Bill No. 620, which became effective
January 1, 2018, changed that, giving trial courts discretion to
2The trial court imposed sentence for a second strike
pursuant to the Three Strikes law. (§§ 667, subds (b)–(i),
1170.12.)
3
strike these enhancements in the interest of justice pursuant to
section 1385. (§§ 12022.5, subd. (c), 12022.53, subd. (h); People v.
Billingsley (2018) 22 Cal.App.5th 1076, 1079–1080 (Billingsley).)
Senate Bill No. 620’s amendments to the firearm
enhancement statutes apply retroactively to all cases in which
the judgment was not final on the date the ameliorative
provisions took effect. (Billingsley, supra, 22 Cal.App.5th at
p. 1080; People v. Watts (2018) 22 Cal.App.5th 102, 119; see
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307–308 &
fn. 5.)
A judgment is not final until the time for petitioning for a
writ of certiorari in the United States Supreme Court has passed,
or such a petition, if filed, has been decided. (People v. Buycks
(2018) 5 Cal.5th 857, 876, fn. 5 (Buycks); People v. Vieira (2005)
35 Cal.4th 264, 306.) Here, the opinion on direct appeal was filed
on July 27, 2017 (see Devore, supra, B276539), and the California
Supreme Court denied appellant’s petition for review on
October 11, 2017. (People v. Devore (Oct. 11, 2017, S244027)
review den.) Appellant’s judgment became final 90 days later, on
January 10, 2018, which was the deadline for filing a petition for
writ of certiorari in the United States Supreme Court. (See
People v. Lizarraga (2020) 56 Cal.App.5th 201, 206 [“a petition
for writ of certiorari is timely filed within 90 days after entry of
judgment of a state court of last resort”].)
2. The summary denial of appellant’s petition for resentencing
under Senate Bill No. 620 is not an appealable order
because the trial court lacked jurisdiction to consider it.
Appellant did not file his petition for resentencing pursuant
to Senate Bill No. 620 until May 3, 2021, long after his conviction
had become final. By that time, the trial court no longer had
4
jurisdiction to entertain a petition to modify appellant’s sentence.
(See People v. Fuimaono (2019) 32 Cal.App.5th 132, 135
(Fuimaono) [trial court lacked jurisdiction to grant resentencing
request under Senate Bill No. 620 after defendant’s conviction
had become final].)
Although section 1237, subdivision (b) authorizes an appeal
from a postjudgment order that affects the substantial rights of
the party, “[a] trial court order denying relief that the court has
no jurisdiction to grant does not affect a defendant’s substantial
rights and is therefore not appealable under section 1237,
subdivision (b).” (People v. King (2022) 77 Cal.App.5th 629, 639;
Fuimaono, supra, 32 Cal.App.5th at p. 135 [“Because the trial
court lacked jurisdiction to modify defendant’s sentence, denial of
his motion to modify his sentence could not have affected his
substantial rights. [Citation.] Accordingly, the ‘order denying
[the] motion to modify sentence is not an appealable order’ ”];
People v. Chlad (1992) 6 Cal.App.4th 1719, 1725–1726 [where
trial court lacks jurisdiction to grant relief, defendant has no
standing to seek recall of sentence and denial of motion for recall
does not affect defendant’s substantial rights under § 1237,
subd. (b)]; see also People v. Thomas (1959) 52 Cal.2d 521, 527.)
Nothing in the language of Senate Bill No. 620 authorizes a
sentence modification after the conviction has become final.
(Fuimaono, supra, 32 Cal.App.5th at p. 135.) Because appellant’s
conviction was final years before he sought resentencing under
Senate Bill No. 620, the trial court lacked jurisdiction to grant
relief, and its denial of appellant’s petition is not an appealable
order.
5
3. In the interest of judicial economy, the appeal may be
treated as a petition for writ of habeas corpus.
Appellant’s judgment was not final on January 1, 2018,
when Senate Bill No. 620 took effect, making him eligible to seek
the benefit of the new legislation’s ameliorative provisions. But
because the trial court lacked jurisdiction to consider a petition
for resentencing after appellant’s conviction had become final,
appellant’s only avenue for relief was by way of a petition for
habeas corpus. In the interest of judicial economy, we may treat
the appeal as a petition for writ of habeas corpus and thereby
reach the merits of the issues presented by the appeal. (Segura,
supra, 44 Cal.4th at p. 928, fn. 4, [treating appeal as petition for
writ of habeas corpus in the interest of judicial economy]; see
People v. Richardson (2021) 65 Cal.App.5th 360, 374 [treating
appeal as habeas petition]; People v. Gallardo (2000) 77
Cal.App.4th 971, 986 [construing the notice of appeal from the
trial court’s denial of a request for resentencing as a habeas
corpus petition].) Appellant requests that we do so here.
Treating the appeal as a petition for writ of habeas corpus,
we conclude that appellant is entitled to the trial court’s
consideration of whether to exercise its discretion under Senate
Bill No. 620 to strike or dismiss any of the firearm enhancements
imposed under section 12022.53, subdivisions (b) and (c). We
therefore remand the matter to allow the trial court to exercise
its discretion in that regard.
Appellant further requests that on remand for the trial
court to exercise its sentencing discretion pursuant to Senate Bill
No. 620, the trial court also consider striking the five-year
enhancement for appellant’s prior serious felony conviction
pursuant to Senate Bill No. 1393. (Sen. Bill No. 1393, Stats.
6
2018, ch. 1013 [amending §§ 667, subd. (f) & 1385, subd. (b) to
grant trial courts discretion to strike previously mandatory five-
year enhancement for prior serious felony conviction].) Our
Supreme Court has explained that when a case is remanded for
resentencing under the recall provisions of section 1170,
subdivision (d), the trial court has jurisdiction to modify “every
aspect of the defendant’s sentence” in consideration of “ ‘any
pertinent circumstances which have arisen since the prior
sentence was imposed.’ ” (Buycks, supra, 5 Cal.5th at p. 893.) An
intervening change in the law is one such “ ‘pertinent
circumstance’ ” the trial court may consider. (See People v.
Pillsbury (2021) 69 Cal.App.5th 776, 786.)
7
DISPOSITION
The appeal from the postjudgment order summarily
denying a petition for resentencing pursuant to Senate Bill
No. 620 is deemed to be a petition for writ of habeas corpus. The
petition is granted. The matter is remanded to the trial court to
exercise its discretion to impose or strike any firearm
enhancements under Penal Code sections 12022.5, subdivision (c)
or 12022.53, subdivision (h). Upon resentencing, the trial court is
further authorized to exercise its discretion to impose or strike
the five-year enhancement for appellant’s prior serious felony
conviction pursuant to Penal Code sections 667, subdivision (f)
and 1385, subdivision (b).
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
8