People v. Lopez CA2/8

Filed 8/18/20 P. v. Lopez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B304936
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA080455)
v.
JESUS LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Upinder S. Kalra, Judge. Affirmed in part and
dismissed in part.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________
In 2013, Jesus Lopez pled no contest to one count of robbery
(Pen. Code, § 211) and admitted personally using a firearm (Pen.
Code, § 12022.5). He was sentenced to state prison for 15 years—
five years for the robbery and 10 years for the gun use
enhancement.
In 2020, Lopez filed a motion seeking relief on two grounds.
He requested a hearing pursuant to People v. Franklin (2016) 63
Cal.4th 261 (Franklin) to present mitigating factors for a
subsequent youth offender parole hearing. He also requested
resentencing pursuant to Senate Bill 620 (SB 620), which
provided sentencing courts with discretion to strike firearm
enhancements.
The trial court summarily denied the motion. The court
rejected the Franklin request because in its view Franklin only
applied to defendants with indeterminate terms and Lopez was
sentenced to a determinate term of 15 years. The court rejected
the request for resentencing pursuant to SB 620 because Lopez’s
judgment had long since become final and SB 620 does not apply
to final judgments. Lopez appealed the order.
We appointed counsel to represent Lopez on appeal. After
review of the record, Lopez’s court-appointed counsel filed an
opening brief asking this court to review the record independently
pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende).
On June 16, 2020, we advised Lopez he had 30 days to submit
any contentions or issues he wished us to consider. Lopez did not
file a supplemental brief.
We have examined the entire record. We are satisfied no
arguable issues exist and Lopez’s counsel has fully satisfied his
responsibilities under Wende. (Smith v. Robbins (2000) 528 U.S.
2259, 279–284; Wende, supra, 25 Cal.3d at p. 441; see People v.
Kelly (2006) 40 Cal.4th 106, 123–124.)
We dismiss Lopez’s appeal of the portion of the order
challenging the denial of his SB 620 resentencing request.
SB 620 does not apply to final judgments, so the trial court lacked
jurisdiction to grant his request. For that reason, the order could
not have affected Lopez’s substantial rights, so it was not an
appealable order after judgment. (People v. Fuimaono (2019)
32 Cal.App.5th 132, 135; see People v. Hernandez (2019) 34
Cal.App.5th 323, 327; People v. Johnson (2019) 32 Cal.App.5th
938, 941–942.)
We affirm the portion of the order denying the Franklin
hearing. We note the trial court’s reason for rejecting the
Franklin request was incorrect because eligibility for parole for
youth offenders applies to determinate sentences. (Pen. Code,
§ 3051, subd. (b)(1).) But Lopez suffered no conceivable prejudice
from the error. The minimum period for youth parole eligibility
for a determinate term is 15 years, and he will have almost
certainly served his 15-year sentence (minus custody credits) by
the time he reaches that date. (Ibid; see id., § 3051, subd.
(a)(3)(C) [setting parole eligibility dates for youth offenders
“unless previously released or entitled to an earlier parole
consideration hearing pursuant to any other law”].) He will have
no need for a Franklin hearing.
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DISPOSITION
The portion of the order denying the Franklin request is
affirmed. The appeal of the portion of the order denying SB 620
resentencing is dismissed.
BIGELOW, P. J.
We concur:
GRIMES, J.
WILEY, J.
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