People v. Lopez CA4/2 ( 2023 )

Filed 12/21/23 P. v. Lopez CA4/2
See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080979
v. (Super.Ct.No. FWV21002678)
JOSE FELIX LOPEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Richard V. Peel,
Judge. Dismissed.
Jose Felix Lopez, in propria persona; and Shay Dinata-Hanson, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Jose Felix Lopez appeals the denial of his Penal Code section 1172.11 petition for
resentencing. After his counsel filed a no-issue brief under People v. Delgadillo (2022)
14 Cal.5th 216 (Delgadillo), Lopez filed his own supplemental brief. Because we lack
jurisdiction to consider his appeal, we dismiss.
BACKGROUND
In 2022 Lopez pled guilty to second degree robbery (§ 211) and admitted he used
a firearm (§ 12022.5, subd. (a).) The court sentenced him according to the terms of his
plea bargain to five years for the robbery and a consecutive four years for the firearm
enhancement.
In 2023 Lopez filed a petition for resentencing under section 1172.1. The court
denied this petition a little less than a month later. Lopez appealed.
ANALYSIS
On Lopez’s request, we appointed counsel to represent him on appeal. Counsel
filed a brief declaring they found no arguably meritorious issues to appeal, setting out a
statement of the case, and asking us to conduct an independent review of the record.
When appealing from a postconviction order a defendant does not have a
constitutional right to independent review under Anders/Wende2 if appellate counsel
cannot identify any arguable issues. (Delgadillo, supra, 14 Cal.5th at p. 231.) However,
“[i]f the defendant subsequently files a supplemental brief or letter, the Court of Appeal
1 Unlabeled statutory citations refer to the Penal Code.
2 Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25
Cal.3d 436 (Wende).
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is required to evaluate the specific arguments presented in that brief and to issue a written
opinion.” (Id. at p. 232.) Here, after appellate counsel filed a brief notifying us Lopez’s
appeal presented no arguable issues, we offered Lopez an opportunity to file a personal
supplemental brief, and he did so.
Section 1172.1 came into existence on June 30, 2022, after two changes to its
numbering. Substantially similar provisions were originally contained in section 1170,
subdivision (d). (People v. Braggs (2022) 85 Cal.App.5th 809, 817-818.) On January 1,
2022, the Legislature moved the recall and resentencing provisions of section 1170,
subdivision (d)(1), to new section 1170.03. (People v. McMurray (2022) 76 Cal.App.5th
1035, 1038.) Then, effective June 30, 2022, “[t]he Legislature . . . renumbered
section 1170.03 to section 1172.1, but made no substantive changes.” (People v. Salgado
(2022) 82 Cal.App.5th 376, 378, fn. 2.)
Under section 1172.1, a “court may, within 120 days of the date of commitment
on its own motion, at any time upon the recommendation of the secretary or the Board of
Parole Hearings in the case of a defendant incarcerated in state prison, the county
correctional administrator in the case of a defendant incarcerated in county jail, the
district attorney of the county in which the defendant was sentenced, or the Attorney
General if the Department of Justice originally prosecuted the case, recall the sentence
and commitment previously ordered and resentence the defendant in the same manner as
if they had not previously been sentenced . . . .” (§ 1172.1, subd. (a)(1).) Thus, only a
court, the Secretary of the Department of Corrections and Rehabilitation, the Board of
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Parole Hearings, a county correctional administrator, a district attorney, or the Attorney
General may recommend or otherwise seek resentencing under section 1172.1. The
statute does not authorize the defendant themselves to recommend or seek resentencing.
Because of this, courts considering former section 1170, subdivision (d)(1), which
used to contain the resentencing provisions now contained in section 1172.1, have held
that it did not permit the inmate to move for recall and resentencing. “Section 1170
subdivision (d) does not confer standing on a defendant to initiate a motion to recall a
sentence.” (People v. Pritchett (1993) 20 Cal.App.4th 190, 193.) “Consequently, the
courts have uniformly held that an order denying a defendant’s request to resentence
pursuant to section 1170 subdivision (d) is not appealable as an order affecting the
substantial rights of the party . . . because the defendant has no right to request such an
order in the first instance.” (Id. at p. 194, italics omitted.)
It follows that we lack the authority to render a decision on the merits of appeals
from a defendant’s attempt to seek resentencing under section 1172.1. (People v.
Hernandez (2019) 34 Cal.App.5th 323, 326.) Accordingly, we dismiss the appeal.
DISPOSITION
We dismiss the appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
I concur:
FIELDS
J.
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[People v. Lopez, E080979]
RAMIREZ, P.J.
I respectfully dissent. Our Supreme Court has afforded reviewing courts
discretion with respect to the disposition of postconviction appeals in which appointed
appellate counsel has filed a no-issues brief. (People v. Delgadillo (2022) 14
Cal.5th 216, 232.) I would exercise that discretion to conduct an independent review of
the record.
RAMIREZ
P. J.
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