People v. Gonzalez CA2/3 ( 2021 )

Filed 4/8/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B308285
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA388074)
v.
LOUIE GONZALEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Dismissed.
Louie Gonzalez, in pro. per.; and Richard B. Lennon, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
——————————
Louie Gonzalez appeals from a postjudgment order denying
his petition for resentencing under Penal Code section 1170,
subdivision (d).1 His appellate counsel has filed a brief asking
this court to proceed under People v. Serrano (2012) 211
Cal.App.4th 496. We dismiss the appeal because the trial court
lacked jurisdiction to grant the requested relief.
BACKGROUND
On February 21, 2014, Gonzalez pleaded no contest to
a charge of attempted murder (§§ 664, 187), and admitted the
enhancement allegations that he personally used a firearm
(§ 12022.53, subd. (b)) and inflicted great bodily injury in the
commission of the offense (§ 12022.7, subd. (a)). Gonzalez was
sentenced to state prison for a term of 22 years, consisting of
nine years on the attempted murder count, 10 years on the
firearm enhancement, and three years on the great-bodily-injury
enhancement.
Six years later, on July 16, 2020, Gonzalez filed a “Verified
Petition for Resentencing.”2 In his petition, Gonzalez contended
he was eligible for resentencing under section 1170, subdivision
(d)(1) and California Code of Regulations, title 15, section 3076.1,
subdivision (a)(3) because there had been intervening changes in
the law since his original sentence was imposed. Gonzalez
specifically cited Senate Bill No. 620, which granted the trial
1 All further statutory references are to the Penal Code.
2 Although the record on appeal does not include the
July 16, 2020 petition for resentencing, Gonzalez attached a copy
of the petition to the supplemental brief he filed in this appeal.
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court discretion to strike firearm enhancements under section
12022.53. He also cited Assembly Bill No. 1618, which added
section 1016.8, prohibiting plea agreements that require a
defendant to waive future benefits of changes in the law. In
addition, Gonzalez asked the court to reconsider his sentence
under section 3051, which governs youth offender parole
hearings, and California Code of Regulations, title 15, section
3076.1, subdivision (a)(1), which authorizes the secretary of the
California Department of Corrections and Rehabilitation (CDCR)
to recommend inmates for resentencing based on good behavior.
On July 20, 2020, the trial court summarily denied
Gonzalez’s petition. In a written order, the court concluded
Gonzalez was not eligible for resentencing under any of the
provisions cited in his petition.
On September 9, 2020, Gonzalez filed a notice of appeal
from the order denying his petition for resentencing. We
appointed counsel to represent Gonzalez. After examining the
record, appellate counsel filed an opening brief raising no issues
and asking this court to follow the procedures set forth in People
v. Serrano, supra, 211 Cal.App.4th 496. Counsel also notified
Gonzalez that he had filed a Serrano brief, and that Gonzalez
could file a supplemental brief. On February 17, 2021, Gonzalez
filed a supplemental brief. We consider his contentions below.
(People v. Cole (2020) 52 Cal.App.5th 1023, 1039–1040, review
granted Oct. 14, 2020, S264278; People v. Kelly (2006) 40 Cal.4th
106, 120, 124.)
DISCUSSION
In his supplemental brief, Gonzalez argues that he received
ineffective assistance of counsel from the attorney he retained in
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connection with his petition for resentencing, and his appointed
counsel on appeal.3 In addition to his ineffective assistance
claim, Gonzalez asserts the trial court erred in denying his
petition because he was entitled to resentencing under Senate
Bill No. 620 and Assembly Bill No. 1618.
In his petition, Gonzalez asserted he was eligible for
resentencing under section 1170, subdivision (d) and California
Code of Regulations, title 15, section 3076.1. Section 1170,
subdivision (d) allows the court to recall a sentence and
resentence a defendant on the court’s own motion, or at the
recommendation of the CDCR secretary, the Board of Parole
Hearings, or the district attorney of the county in which the
defendant was sentenced. California Code of Regulations,
title 15, section 3076.1 sets forth the specific circumstances under
which the secretary of the CDCR may recommend an inmate for
resentencing pursuant to section 1170, subdivision (d).
Neither provision authorizes a defendant to initiate a
sentence recall proceeding by filing a motion or petition for
resentencing. (People v. Loper (2015) 60 Cal.4th 1155, 1165;
People v. Turrin (2009) 176 Cal.App.4th 1200, 1204–1205.)
Additionally, section 1170, subdivision (d)(1) expressly limits the
trial court’s authority to recall a sentence on its own motion to
the first 120 days after the defendant’s commitment. (Loper, at
3 As we understand his arguments, Gonzalez alleges that
his attorney in the lower court fraudulently induced Gonzalez
and his wife to retain him by misrepresenting that he “would file
an 1170(d) motion and have [Gonzalez’s] sentence recalled,” and
that the attorney then filed a defective and inadequate motion.
Gonzalez further alleges his appellate counsel falsely represented
that he never received a copy of the petition for resentencing.
4
p. 1165; Dix v. Superior Court (1991) 53 Cal.3d 442, 464.) Once
that 120-day period has expired, the trial court lacks jurisdiction
to recall a sentence or resentence a defendant on its own motion,
and may only act on the recommendation of the relevant state
or county agencies. (Loper, at p. 1165; Dix, at p. 464.) Because
Gonzalez was committed to state prison when he was sentenced
in 2014, the trial court did not have jurisdiction to grant his
petition for resentencing under section 1170, subdivision (d)
or California Code of Regulations, title 15, section 3076.1.
In his petition, Gonzalez also argued he was entitled to
resentencing based on recent changes in the law provided by
Senate Bill No. 620 and Assembly Bill No. 1618. Senate Bill
No. 620 amended section 12022.53 to permit a trial court, “in the
interest of justice pursuant to Section 1385 and at the time of
sentencing, [to] strike or dismiss an enhancement otherwise
required to be imposed by this section.” (§ 12022.53, subd. (h);
Stats. 2017, ch. 682, § 2.) However, Senate Bill No. 620’s
amendment to section 12022.53, which took effect on January 1,
2018, applies only to nonfinal judgments. (People v. Baltazar
(2020) 57 Cal.App.5th 334, 341–342; People v. Johnson (2019) 32
Cal.App.5th 938, 941–942; People v. Fuimaono (2019) 32
Cal.App.5th 132, 135.) Because Gonzalez’s judgment became
final well before the effective date of the amendment, the trial
court lacked jurisdiction to resentence him pursuant to Senate
Bill No. 620. (Baltazar, at p. 342; Johnson, at p. 941; Fuimaono,
at p. 135.)
Assembly Bill No. 1618 added section 1016.8 to the Penal
Code effective January 1, 2020. (Stats. 2019, ch. 586, § 1; People
v. Stamps (2020) 9 Cal.5th 685, 704–705.) Section 1016.8,
subdivision (b) provides, in relevant part, that a “provision of a
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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 apply after the
date of the plea is void as against public policy.” However, like
Senate Bill No. 620, Assembly Bill No. 1618 only applies
retroactively to cases that are not yet final on appeal. (People v.
Barton (2020) 52 Cal.App.5th 1145, 1153.) It does not authorize
a collateral attack on a final judgment. The trial court
accordingly lacked jurisdiction to grant Gonzalez relief pursuant
to Assembly Bill No. 1618.
Gonzalez further sought resentencing under section 3051.
As relevant here, section 3051, subdivision (b)(1) provides that
inmates sentenced to a determinate term who were 25 years or
younger at the time of their commitment offense are entitled to a
youth offender parole hearing in their 15th year of incarceration
to determine their suitability for parole. Section 3051 does not,
however, permit such inmates to petition the trial court for recall
of their sentence or resentencing. Gonzalez was not entitled to
seek resentencing based on his eligibility, if any, for a future
youth offender parole hearing, and the trial court had
no jurisdiction to grant such relief under section 3051.4
Gonzalez’s petition did not provide a basis for the recall
of his sentence or resentencing. As a result, any claim for
ineffective assistance of counsel likewise fails. To establish a
4 The record reflects that after the trial court denied his
petition for resentencing, Gonzalez filed a motion for an evidence
preservation hearing under section 1203.01. That motion is not
the subject of this appeal. We express no opinion whether
Gonzalez is entitled to an evidence preservation proceeding
pursuant to section 1203.01.
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claim for ineffective assistance of counsel, “a defendant must
show that his or her counsel’s performance was deficient and that
the defendant suffered prejudice as a result of such deficient
performance. [Citation.] . . . [Citation.] To demonstrate
prejudice, defendant bears the burden of showing a reasonable
probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.” (People v.
Mickel (2016) 2 Cal.5th 181, 198.)
Even assuming without deciding that Gonzalez could meet
his burden of demonstrating deficient performance by either
retained counsel or appellate counsel, he cannot demonstrate
prejudice. The trial court properly denied the petition because
Gonzalez was not entitled to resentencing under applicable law.
Gonzalez accordingly cannot show that, but for the allegedly
deficient performance of counsel, the outcome of these
postjudgment proceedings would have been any different.
“ ‘ “It is settled that the right of appeal is statutory and that
a judgment or order is not appealable unless expressly made so
by statute.” ’ ” (Teal v. Superior Court (2014) 60 Cal.4th 595,
598.) A postjudgment order affecting a defendant’s substantial
rights is appealable. (§ 1237, subd. (b).) However, subject to
limited statutory exceptions not applicable here, once a judgment
has been rendered, a trial court is without jurisdiction to vacate
or modify a sentence. (People v. Hernandez (2019) 34 Cal.App.5th
323, 326; People v. Fuimaono, supra, 32 Cal.App.5th at p. 135.)
Because the trial court lacked jurisdiction to modify Gonzalez’s
sentence, its order denying his petition for resentencing could not
have affected Gonzalez’s substantial rights, and the appeal from
that order must be dismissed. (People v. Loper, supra, 60 Cal.4th
at pp. 1165–1166; People v. Turrin, supra, 176 Cal.App.4th at
7
p. 1208; Hernandez, at p. 327; Fuimaono, at p. 135.) Further, we
are satisfied appellate counsel has fulfilled his responsibilities
and conclude the appeal raises no arguable issues.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ADAMS, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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