People v. Robertson CA3 ( 2023 )

Filed 12/15/23 P. v. Robertson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE,
Plaintiff and Respondent, C097007
v. (Super. Ct. No. NCR76069)
MICHAEL DEAN ROBERTSON,
Defendant and Appellant.
Appointed counsel for defendant Michael Dean Robertson asked this court
to review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Because we do not have jurisdiction
to consider this matter, we will dismiss the appeal.
I
On February 5, 2010, defendant pleaded no contest in two Shasta County cases to
first degree burglary (Pen. Code, § 459)1 and evading an officer (Veh. Code, § 2800.2),
1 Undesignated statutory references are to the Penal Code.
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and admitted four prior prison terms (§ 667.5, subd. (b)) and a prior strike conviction.
The trial court sentenced defendant to an aggregate 16-year prison term, consisting of the
following: as to the burglary conviction, the upper term of six years, doubled to 12 years
for the prior strike, plus four years for the four prior prison terms; and as to the evading
an officer conviction, a concurrent upper term of three years, doubled to six years for the
prior strike conviction.
In 2011, in Tehama County, defendant pleaded guilty to four burglary counts
(§ 459) and admitted a firearm allegation (§ 12022.5, subd. (a)) and a prior strike
conviction. The trial court sentenced defendant to the stipulated term of 30 years
in the Tehama case, and as to the Shasta County cases, imposed two years eight months,
for a total sentence of 32 years eight months.
On April 16, 2018, after receiving a letter from the Department of Corrections and
Rehabilitation (CDCR), the Shasta County trial court resentenced defendant but
maintained the aggregate 16-year prison term that it had previously imposed. It
reimposed the same 12-year term on the burglary conviction plus the four years for the
prior prison terms, but dismissed the prior strike admission in connection with the
evading an officer conviction and imposed a concurrent middle term of two years on that
count.
In May 2018, CDCR informed the Tehama County court of a number of problems
with the 2011 Tehama County abstract of judgment and also notified the court that the
Shasta County court had modified defendant’s Shasta County sentence in April 2018.
On August 7, 2018, the Tehama County court corrected defendant’s abstract of
judgment. The Tehama court noted that the parties at the 2011 Tehama sentencing
hearing appeared to have been unaware of the four prior prison term enhancement
allegations, and the Tehama court explained that its order did not address these
allegations. The amended abstract of judgment filed in Tehama County on August 7,
2018, did not include prior prison term enhancements. Tehama court staff apparently
2
filed another abstract of judgment on September 5, 2018, adding four prior prison term
enhancements for a total term of 36 years eight months, but the Tehama court struck that
abstract and ordered the August 7, 2018 abstract to remain in effect.
After receiving another CDCR letter, the Tehama court declined to further modify
the August 7, 2018 abstract of judgment, explaining in a minute order: “The court was
informed that the [plea] agreement included the Shasta sentencing which would add two
years and eight months to the sentence, and the defendant was clearly advised that the
maximum sentence, should he enter a plea, would be thirty-two years and eight months.
On that understanding he entered a plea. There is a transcript of that proceeding.
Nowhere in that transcript are the Shasta County [section] 667.5[, subdivision ](b)
allegations mentioned. [¶] . . . [¶] According to the record, but for the plea agreement,
the defendant faced the possibility of a sentence in excess of life in prison. The
defendant got the full benefit of his plea bargain.” The Tehama court added, “Even if the
court’s sentence exceeded its jurisdiction, a defendant cannot complain of getting what he
bargained for so long as the court had fundamental jurisdiction.”
On March 3, 2022, representing himself, defendant filed a petition for
resentencing under Penal Code section 1172.75,2 asserting that he had agreed to a
sentence of 32 years eight months, but the Tehama court filed an amended abstract of
judgment on September 5, 2018, adding four years to his sentence to which he did not
agree, and the prior prison term enhancements are now invalid.
On September 20, 2022, the Tehama court held a hearing on defendant’s petition
and denied it.
2 This statute was formerly section 1171.1, but it was renumbered to section 1172.75.
(Assem. Bill No. 200 (2021-2022 Reg. Sess.); Stats. 2022, ch. 58, § 12.)
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II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed and we received no communication from defendant.
The Tehama court appears to have concluded that defendant’s sentence does
not include any section 667.5, former subdivision (b) enhancement invalidated by
section 1172.75, subdivision (a). But we do not have jurisdiction to consider the matter.
(People v. King (2022) 77 Cal.App.5th 629, 634 (King).) The right to appeal is entirely
statutory. (People v. Clark (2021) 67 Cal.App.5th 248, 254.) As relevant here, an order
following judgment is only appealable if it affects a defendant’s substantial rights.
(§ 1237, subd. (b).) Generally, subject to certain statutory exceptions, a trial court is
deprived of jurisdiction to resentence a criminal defendant once execution of the sentence
has commenced. (People v. Pillsbury (2021) 69 Cal.App.5th 776, 784.) Section 1172.75
is an exception to that general rule, permitting notification from the CDCR to vest the
trial court with jurisdiction to review the judgment and recall and resentence defendant.
(§ 1172.75, subd. (c).) A defendant who files a petition without statutory permission
does not vest the sentencing court with jurisdiction to resentence. (People v. Fuimaono
(2019) 32 Cal.App.5th 132, 135; see also People v. Chlad (1992) 6 Cal.App.4th 1719,
1725 (Chlad).)
The trial court lacked jurisdiction to modify defendant’s sentence through his
petition. Because the trial court could not have granted defendant’s petition for
resentencing, the trial court’s denial of defendant’s petition could not have affected his
substantial rights under section 1237, subdivision (b), and was not an appealable order.
(King, supra, 77 Cal.App.5th at p. 634.) Accordingly, we will dismiss the appeal.
(Chlad, supra, 6 Cal.App.4th at pp. 1726-1727; King, at p. 634.)
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DISPOSITION
The appeal is dismissed.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
MESIWALA, J.
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