People v. Guerrero CA2/2

Filed 1/19/21 P. v. Guerrero CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B302306
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA060354)
v.
GINA GUERRERO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Michael Terrell, Judge. Dismissed.
Jenny M. Brandt, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Gina Guerrero (appellant) appeals from the trial court’s
order denying her petition to strike a firearm enhancement that
was imposed pursuant to a judgment that became final long
before the petition was filed. The order is not appealable and we
dismiss the appeal.
FACTS
Over a decade ago, appellant pleaded no contest to one
count of second degree robbery (Pen. Code, § 211; count 7),1 two
counts of attempted second degree robbery (§§ 664/211; counts 8
and 9), and one count of possession of a firearm by a felon with a
prior (former § 12021, subd. (a)(1); count 14). She admitted
section 12022.53, subdivision (b) firearm allegations and section
186.22, subdivision (b)(1) gang allegations.
On November 20, 2009, the trial court sentenced appellant
to 38 years in state prison based on the following consecutive
sentences: as to count 7, the upper term of five years plus 10
years for the firearm enhancement and 10 years for the gang
enhancement; as to counts 8 and 9, eight months each plus three
years four months for the firearm enhancement and one year
eight months for the gang enhancement; and as to count 14, eight
months plus one year for the gang enhancement. The remaining
charges were dismissed.
Effective January 1, 2018, Senate Bill No. 620 (SB 620)
amended sections 12022.5 and 12022.53 to permit trial courts to
strike firearm enhancements. (People v. Alexander (2020) 45
Cal.App.5th 341, 343; §§ 12022.5 & 12022.53.) In August 2019,
appellant filed a petition asking the trial court to recall her
sentence and resentence her under section 1170, subdivision (d).
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Appellant acknowledged that her case was final, “which
disqualifie[d] her from obtaining direct relief via [SB] 620.” She
argued, however, that when the trial court recalled her sentence
under section 1170, subdivision (d), it would be permitted to
strike the firearm enhancements under SB 620 when issuing a
new sentence.
The trial court denied the petition. The written order
explained that “[i]n general, the [trial] court’s ability to modify or
recall a sentence [pursuant to section 1170, subdivision (d)] is
limited to the 120-day period following the imposition of
sentence. . . . As such, the [trial] court lacks jurisdiction to grant
the request appellant seeks. Second, even if the [trial] court had
jurisdiction to consider defendant’s petition[,] and even if SB 620
applied to [appellant’s] situation, it would not make the
sentencing enhancement[s] illegal. At most, it only gives the
[trial] court discretion to not apply the enhancement[s]. In
[appellant’s] case, the record provides no basis for not imposing
the enhancement[s].” The order also stated: “[Appellant’s]
conviction and sentence arose from a plea of no contest, and the
claims defendant now raises in this petition are challenges to an
agreed-upon disposition. As such, they have been waived by
virtue of her plea and there is no basis to excuse this waiver. . . .
[Appellant] has received the benefit of her bargain and may not
thereafter trifle with the courts by attempting to better her
bargain.”
This appeal followed.
DISCUSSION
An order made after judgment is appealable only if it
affects a defendant’s substantial rights. (§ 1237, subd. (b).) If the
trial court lacked jurisdiction to grant the relief requested by
3
appellant, then its order denying her petition did not affect her
substantial rights within the meaning of section 1237,
subdivision (b). (People v. Hernandez (2019) 34 Cal.App.5th 323,
326 (Hernandez).)
Generally, once a judgment is rendered, “‘the sentencing
court is without jurisdiction to vacate or modify the sentence,
except pursuant to the provisions of section[s] 1170, subdivision
(d)[,]’” 1170.18 and 1170.126. (Hernandez, supra, 34 Cal.App.5th
at p. 326.) The parts of section 1170, subdivision (d) that
appellant relied upon below “allow[] a sentencing court on its own
motion to recall and resentence, subject to the express limitation
that the court must act to recall the sentence within 120 days
after committing the defendant to prison. [Citation.] Indeed, ‘the
court loses ‘own-motion’ jurisdiction if it fails to recall a sentence
within 120 days of the original commitment. [Citations.]”
[Citation.]’ [Citation.]” (Hernandez, supra, 34 Cal.App.5th at
p. 326.) Regardless of the limitations noted above, a trial court
may correct an unauthorized sentence at any time. (People v.
Martinez (1998) 65 Cal.App.4th 1511, 1519.) A sentence is
unauthorized if it “‘“could not lawfully be imposed under any
circumstances in the particular case.”’” (People v. Turrin (2009)
176 Cal.App.4th 1200, 1205.)
Here, appellant did not file her petition within 120 days of
being sentenced. The only potential basis for the trial court to
exercise jurisdiction was to correct an unauthorized sentence.
This leads her to contend that the trial court had jurisdiction to
modify the judgment because SB 620 rendered her sentence
unauthorized and an unauthorized sentence can be modified at
any time. But appellant’s petition was based on section 1170,
subdivision (d) and SB 620, not on the theory that her sentence
4
was illegal. Points not raised in the trial court will not be
considered on appeal. (Hepner v. Franchise Tax Bd. (1997) 52
Cal.App.4th 1475, 1486.)
To be complete, we reject appellant’s contention.
Appellant suggests that her 2009 sentence became
unauthorized in 2018 by operation of law once SB 620 became
effective on the theory that it invalidated her plea bargain. This
argument fails. She cites no law establishing that SB 620
invalidates plea bargains or that, in general, statutory changes to
sentencing schemes have that effect.
Next, appellant argues that applying SB 620 prospectively
but not retroactively is a violation of the equal protection clauses
of the California and federal constitutions. (U.S. Const., 14th
Amend., § 1; Cal. Const., art. I, § 7.)
This argument was properly rejected in Hernandez.
(Hernandez, supra, 34 Cal.App.5th at pp. 326–327.) Equal
protection principles “prohibit [a] state from arbitrarily
discriminating among persons subject to its jurisdiction, and
require that classifications between those to whom the state
accords and withholds substantial benefits must be reasonably
related to a legitimate public purpose. [Citations.]” (In re
Kapperman (1974) 11 Cal.3d 542, 545.) A state has a legitimate
interest in proscribing the retroactive application of new
sentencing schemes. It avoids manipulations by defendants
seeking to delay finality and benefit from future changes in the
law. It permits penal laws to maintain their desired deterrent
effect. Beyond these purposes, there are legitimate practical
concerns “associated with the transition from one sentencing
scheme to another[.]” (People v. Floyd (2003) 31 Cal.4th 179,
191.) For instance, a state may want to avoid resentencing
5
numerous defendants. (Ibid.) Accordingly, the “‘14th
Amendment does not forbid statutes and statutory changes to
have a beginning, and thus to discriminate between the rights of
an earlier and later time.’ [Citation.]” (Ibid.) As further noted in
Baker v. Superior Court (1984) 35 Cal.3d 663, 668–669, “‘A
refusal to apply a statute retroactively does not violate the
Fourteenth Amendment.’ [Citation.]”
All other issues are moot.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
_______________________, J.
HOFFSTADT
6