People v. Cervera CA2/1 ( 2020 )

Filed 11/2/20 P. v. Cervera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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This opinion has not been certified for publication or ordered published for purposes of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, B306160
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA266956)
v.
DAVID CERVERA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Henry J. Hall, Judge. Affirmed.
David Cervera, in pro. per.; and Richard B. Lennon, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
In 1985 and 1989, David Cervera entered into plea
bargains that resulted in first degree burglary convictions.
In 2004, Cervera was convicted of four counts of
first degree burglary and one count of grand theft. He was
sentenced to a term of 41 years 8 months to life based in part
on findings that the burglary convictions that resulted from his
prior pleas constituted strikes under the “Three Strikes” law.
We affirmed the judgment in 2006. (People v. Cervera (Feb. 27,
2006, B181421) [nonpub. opn.].)
On April 7, 2020, Cervera filed a petition for writ of
habeas corpus in the superior court. In stating the grounds
for the petition, Cervera incorporated an attached petition
for resentencing based on Penal Code section 1016.8.1 In the
petition for resentencing, Cervera asserts that the plea bargains
he made in 1985 and 1989 were not made knowingly and
voluntarily because he was unaware that the convictions could
be later used against him under the subsequently enacted
Three Strikes law.
On April 27, 2020, the court denied the petition on its
merits.
Cervera appealed. His notice of appeal states that he
is appealing from the denial of his “petition for [m]odification
of [s]entence pursuant to Penal Code [section] 1016.8[,
subdivision] (a).”
We appointed counsel for Cervera, who filed a brief
raising no issues and requesting that we follow the procedures
set forth in People v. Serrano (2012) 211 Cal. App. 4th 496.
Counsel provided Cervera with a copy of the record and
his brief, and told Cervera that he had the right to file a
1 Subsequent statutory references are to the Penal Code.
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supplemental brief. Counsel stated that he remains available to
brief any issues upon our request.
Cervera filed a supplemental brief in which he reiterates
the argument he made in his petition to the superior court.
To the extent the document Cervera filed in the superior
court is a petition for writ of habeas corpus, the court’s denial
of that petition is not appealable. (Robinson v. Lewis (2020)
9 Cal. 5th 883, 895; In re Clark (1993) 5 Cal. 4th 750, 767, fn. 7.)
To the extent his petition sought relief under section 1016.8,
nothing in that statute authorizes a collateral attack on a final
judgment and no other basis for superior court jurisdiction over
the petition appears from our record. (See People v. Picklesimer
(2010) 48 Cal. 4th 330, 337 [collateral attacks by postjudgment
motion are generally not permitted]; People v. Torres (2020)
44 Cal. App. 5th 1081, 1084 [“Generally, once a judgment is
rendered and execution of the sentence has begun, the trial
court does not have jurisdiction to vacate or modify the
sentence.”].) We do not, therefore, appear to have jurisdiction
to consider the appeal. (See People v. Fuimaono (2019) 32
Cal. App. 5th 132, 135.)
If the appeal is properly before us, it is without merit.
Section 1016.8, subdivision (a)(4) of that statute provides:
“A plea bargain that requires a defendant to generally waive
unknown future benefits of legislative enactments, initiatives,
appellate decisions, or other changes in the law that may
occur after the date of the plea is not knowing and intelligent.”
(§ 1016.8, subd. (a)(4).) Subdivision (b) states: “A provision
of a plea bargain that requires a defendant to generally waive
future benefits of legislative enactments, initiatives, appellate
decisions, or other changes in the law that may retroactively
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apply after the date of the plea is void as against public policy.”
(§ 1016.8, subd. (b).)
The Legislature enacted section 1016.8 in response to a
report that a particular district attorney’s office was including
a provision in plea agreements whereby the defendant agreed
to waive “ ‘all future potential benefits of any legislative actions
or judicial decisions or other changes in the law that may occur
after the date of this plea,’ ” and a statement in a 2019 decision
indicating that such a waiver would be enforceable. (People v.
Barton (2020) 52 Cal. App. 5th 1145, 1153, citing Sen. Com.
on Public Safety, Analysis of Assem. Bill No. 1618 (2019–2020
Reg. Sess.) July 1, 2019, pp. 6–7.) By enacting section 1016.8,
the Legislature “intended to ‘make such provisions in a plea
bargain void as against public policy.’ ” (People v. Barton, supra,
52 Cal.App.5th at p. 1153.)
Even if section 1016.8 applies to Cervera’s plea
agreements, the statute would not help him because he is
not seeking to obtain the benefit of changes in any law that
postdates his plea bargains. Rather, he is seeking to avoid
the adverse effect of a post-plea change in the law, namely,
the enactment of the Three Strikes law. It is well-established
that convictions based on guilty pleas that predate enactment
of the Three Strikes law can enhance sentences imposed under
that law. (See People v. Gipson (2004) 117 Cal. App. 4th 1065,
1068–1070; People v. Sipe (1995) 36 Cal. App. 4th 468, 476–479;
see also Doe v. Harris (2013) 57 Cal. 4th 64, 66 [a plea
agreement does not insulate the parties “from changes in
the law that the Legislature has intended to apply to them”];
§ 1016.8, subd. (a)(1) [same].) Nothing in section 1016.8 alters
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that principle. Therefore, the court did not err in denying
Cervera’s petition on its merits.
We are satisfied that Cervera’s counsel has fulfilled
his responsibilities (see People v. Cole (2020) 52 Cal. App. 5th
1023, 1038, review granted Oct. 14, 2020, S264278) and
conclude that the appeal raises no arguable issues.
DISPOSITION
The trial court’s April 27, 2020 order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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