People v. Miller CA2/4

Filed 6/30/23 P. v. Miller CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B323209
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA037989)
v.
GERALD LEE MILLER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Connie R. Quinones, Judge. Dismissed.
A. William Bartz, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Appellant Gerald Lee Miller is currently serving a prison
sentence that includes four one-year prison prior enhancements
imposed pursuant to Penal Code section 667.5, subdivision (b).1
Effective January 1, 2022, section 1172.75 rendered legally
invalid all section 667.5, subdivision (b) enhancements not
imposed for prior convictions for sexually violent offenses.
Section 1172.75 also established a procedure to ensure
resentencing of all individuals subject to invalidated
enhancements; under this procedure, the Department of
Corrections and Rehabilitation (CDCR) is obligated to identify
eligible inmates, and the superior court is obligated to resentence
them. Notwithstanding the statutory procedure, appellant filed a
motion and three petitions for writ of habeas corpus in superior
court, seeking resentencing under section 1172.75 and various
other statutory provisions. He also filed objections to an order
taking his matter off calendar. The superior court denied relief
in a single order, concluding that appellant’s request for
resentencing under section 1172.75 was premature in light of the
statutory procedure and that his other claims had been addressed
in previous rulings.
Appellant appealed from the court’s order. His appointed
counsel filed a brief identifying no issues and requesting that this
court follow the procedures set forth in People v. Serrano (2012)
211 Cal.App.4th 496 (Serrano). Appellant filed a supplemental
brief.
We dismiss the appeal. Generally, once judgment in a
criminal case is rendered and execution of a sentence begins, trial
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
courts lack jurisdiction to vacate or modify a sentence. (People v.
King (2022) 77 Cal.App.5th 629, 634 (King).) To the extent
appellant filed motions seeking to modify his sentence, the trial
court lacked jurisdiction over those motions, and we lack
jurisdiction to consider an appeal from the court’s ruling. To the
extent appellant filed and the trial court denied petitions for writ
of habeas corpus, the order is not appealable. (Briggs v. Brown
(2017) 3 Cal.5th 808, 836.) None of the contentions in appellant’s
supplemental brief alters this conclusion or entitles him to relief.
FACTUAL AND PROCEDURAL BACKGROUND
I. Conviction and Direct Appeal
In 1998, a jury convicted appellant of 11 felonies and found
true related enhancements.2 The superior court sentenced
appellant to a total determinate term of 42 years. On count 1,
attempted murder (§§ 187, 664), the court sentenced appellant to
a total of 22 years: the upper term of nine years for attempted
murder (§ 664, subd. (a)), plus 10 years for personal use of a
firearm (§ 12022.5, subd. (a)), and three years for the infliction of
great bodily injury (§ 12022.7, subd. (a)). On count 3, the court
imposed a consecutive sentence totaling three years, four months
for robbery (§ 211), a firearm enhancement (§ 12022.5, subd. (a)),
and an enhancement for inflicting great bodily injury (§ 12022.7,
subd. (a)). The court imposed consecutive sentences of two years,
four months on each of counts 6, 7, and 8, for robbery (§ 211) and
related firearm enhancements (§ 12022.5, subd. (a)). On count
13, the court imposed a consecutive sentence of three years, eight
months for attempted murder (§§ 187, 664) and a related firearm
enhancement (§ 12022.5, subd. (a)). Consecutive to the collective
2 The 11 counts are numbered 1 through 13; counts 4 and 9
were dismissed.
3
consecutive term of 36 years, the court imposed one year for each
of six prison priors, none of which was served for a sexually
violent offense. (§ 667.5, subd. (b).) The court imposed and stayed
sentences on count 2, attempted robbery (§§ 211, 664, 12022.5,
subd. (a), 12022.7, subd. (a)), count 5, assault with a firearm (§§
245, subd. (a)(2), 12022.7, subd. (a)), and counts 10, 11, and 12,
felon in possession (former § 12021, subd. (a)), pursuant to
section 654.
Appellant appealed his convictions and sentence. A
different panel of this court affirmed his convictions but ordered
his sentence modified. Pursuant to a remittitur issued June 27,
2000, the superior court struck two of the six one-year prison
priors (§ 667.5, subd. (b)) and a great bodily injury enhancement
(§ 12022.7, subd. (a)) on stayed count 5, and reduced appellant’s
restitution fine from $1,000 to $200. After these modifications,
appellant was left with a total sentence of 40 years, including
four one-year prison priors (reduced from the original six).
II. Recent Changes in the Law
A. Senate Bill No. 620
In 2017, the Legislature enacted Senate Bill No. 620 (2017–
2018 Reg. Sess.) (SB 620). SB 620 amended sections 12022.5 and
12022.53 to give the superior court discretion to strike or dismiss
firearm enhancements imposed under those sections in the
interest of justice. (Stats. 2017, ch. 682, §§ 1 & 2; §§ 12022.5,
subd. (c), 12022.53, subd. (h); see People v. Baltazar (2020) 57
Cal.App.5th 334, 337.) “[T]he authority to strike or dismiss a
firearm enhancement applies only to nonfinal judgments or to
final judgments where the defendant is being resentenced under
some other law.” (People v. Baltazar, supra, 57 Cal.App.5th at p.
341.)
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B. Senate Bill Nos. 136
Effective January 1, 2020, Senate Bill No. 136 (2018-2019
Reg. Sess.) (SB 136) amended section 667.5, subdivision (b)
regarding prior prison term enhancements. (See Stats. 2019, ch.
590.) Former section 667.5, subdivision (b) imposed an additional
one-year term for each prior separate prison term or county jail
felony term, except under specified circumstances. However, as
amended by SB 136, section 667.5, subdivision (b) now imposes
an additional one-year term only for prior prison terms served for
convictions of sexually violent offenses. (See § 667.5, subd. (b).)
SB 136 rendered prison priors imposed for non-sexually violent
offenses legally invalid, but applied retroactively only to cases not
yet final on January 1, 2020. (People v. Burgess (2022) 86
Cal.App.5th 375, 380 (Burgess).)
C. Senate Bill No. 483
In 2021, the Legislature enacted Senate Bill No. 483 (2021-
2022 Reg. Sess.) (SB 483). This bill made the changes
implemented by SB 136 retroactive. (Stats. 2021, ch. 728, § 1 [“it
is the intent of the Legislature to retroactively apply . . . Senate
Bill 136 of the 2019-20 Regular Session to all persons currently
serving a term of incarceration in jail or prison for these repealed
sentence enhancements”].) SB 483 took effect on January 1,
2022, and added former section 1171.1, now section 1172.75, to
the Penal Code. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, §
12.)
Section 1172.75 provides, “Any sentence enhancement that
was imposed prior to January 1, 2020, pursuant to subdivision (b)
of Section 667.5, except for any enhancement imposed for a prior
conviction for a sexually violent offense as defined in subdivision
(b) of Section 6600 of the Welfare and Institutions Code is legally
invalid.” (§ 1172.75, subd. (a).) “The statute further establishes
a mechanism to provide affected defendants a remedy for those
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legally invalid enhancements.” (Burgess, supra, 86 Cal.App.5th
at p. 380.) That mechanism is section 1172.75, subdivision (b),
which requires the Secretary of the Department of Corrections
and Rehabilitation (CDCR) to identify all persons in custody to
whom the provision applies and provide their information to the
courts that sentenced them “[b]y March 1, 2022, for individuals
who have served their base term and any other enhancements
and are currently serving a sentence based on the enhancement,”
and “[b]y July 1, 2022, for all other individuals.” (§ 1172.75,
subds. (b)(1) & (b)(2).) For purposes of the statute, “all other
enhancements shall be considered to have been served first.”
(§ 1172.75, subd. (b)(1).) Sentencing courts are required to
resentence persons in the March 1, 2022 group by October 1,
2022, and the July 1, 2022 group by December 31, 2023.
(§ 1172.75, subds. (c)(1) & (c)(2).)
D. Senate Bill No. 81
Effective January 1, 2022, Senate Bill No. 81 (2021-2022
Reg. Sess.) (SB 81) amended section 1385 to require the superior
court to dismiss sentencing enhancements “if it is in the
furtherance of justice to do so” and would not endanger public
safety. (See § 1385, subd. (c).) SB 81 also added to section 1385 a
list of mitigating circumstances for the court to consider when
exercising its discretion to dismiss enhancements. (See § 1385,
subd. (c).) Those circumstances include “[a]pplication of the
enhancement would result in a discriminatory racial impact as
described in paragraph (4) of subdivision (a) of Section 745,”
“[m]ultiple enhancements are alleged in a single case,” “[t]he
application of an enhancement could result in a sentence over 20
years,” “[t]he current offense is not a violent felony as defined in
subdivision (c) of Section 667.5,” and “[t]he enhancement is based
on a prior conviction that is over five years old.” (§ 1385, subds.
(c)(2)(A), (B), (C), (F), (H).) The changes effected by SB 81 “apply
6
to all sentencings occurring after January 1, 2022.” (§ 1385, subd.
(c)(7).)
E. Assembly Bill No. 1540
Prior to January 1, 2022, “[f]ormer section 1170 [,
subdivision] (d)(1) authorized a trial court, at any time upon the
recommendation of the Secretary [of the CDCR], to ‘recall the
sentence and commitment previously ordered and resentence the
defendant in the same manner as if they had not previously been
sentenced, provided the new sentence, if any, is no greater than
the initial sentence.’” (People v. McMurray (2022) 76 Cal.App.5th
1035, 1040 (McMurray).) Assembly Bill No. 1540 (2021-2022
Reg. Sess.) (Stats. 2021, ch. 719, §§ 1-7) (AB 1540) moved the
recall and resentencing provisions from section 1170, subdivision
(d)(1) to former section 1170.03, which has since been
renumbered without substantive change as section 1172.1. (See
Stats. 2022, ch. 58, § 9.)
Section 1172.1 retained the recall and resentencing
language of section 1170, subdivision (d)(1). It also added several
requirements to the superior court’s consideration of a recall and
resentencing recommendation made by CDCR or other entities,
not a defendant himself or herself. (See § 1172.1, subd. (a)(1).)
These include appointing counsel for the defendant and holding a
status conference within 30 days of the resentencing request. (§
1172.1. subd. (b)(1).)
III. Appellant’s Filings
A. Request for Judicial Notice
On November 19, 2021, appellant requested that the
superior court take judicial notice of SB 483 and SB 81.
Appellant asserted that he had been sentenced to six one-year
prison priors that were no longer valid in light of SB 483, and
that the court was required “to take immediate action” to grant
him relief. He further suggested that SB 81 prohibited the
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imposition of more than one enhancement for causing great
bodily injury and multiple enhancements in a single case
generally.
B. April 21, 2022 Petition for Writ of Habeas
Corpus 3
On April 21, 2022, appellant filed a petition for writ of
habeas corpus that asserted two grounds for relief. The first
asserted ground for relief was “based on senate bill 483 and
amended senate bill 136 [sic].” Appellant requested that the
superior court strike his six one-year prison priors pursuant to
those bills.
In the second asserted ground for relief, appellant
contended that SB 620 and “Senate Bill 1385”4 required the court
to strike or dismiss certain of his enhancements. Despite not
being sentenced under section 12022.53, appellant also invoked
section 12022.53, subdivision (f), which limits the number of
enhancements that may be imposed pursuant to that section and
3 In this petition, appellant asserted that he filed a motion
for resentencing pursuant to SB 483 and SB 81 on January 17,
2022, and that the superior court “refused to hear the issue.
And/Or respond to the motion for resentencing.” No such motion
or ruling appears in the appellate record.
4 This court’s research has not uncovered a relevant Senate
Bill with this number. It appears that appellant may have been
referring to section 1385, or to Senate Bill No. 1393 (2017-2018
Reg. Sess.) (SB 1393), which amended section 1385, subdivision
(b)(1) to authorize courts to strike five-year prison prior
enhancements imposed under section 667, subdivision (a) “in the
furtherance of justice.” (Stats. 2018, ch. 1013, §§ 1, 2.) As a
different panel of this court previously explained, SB 1393 is
inapplicable here because appellant was not sentenced under
section 667, subdivision (a). (See People v. Miller (Nov. 16, 2021,
B310804) [nonpub. opn.].)
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certain others. (See § 12022.53, subd. (f).) Appellant requested
that the court resentence him by “striking penal code section
12022.7(a) [sic] from counts 1-2 and 5 for a total of 15 years and
any other relief that this amendment privides [sic] for the
appellant.”
C. April 27, 2022 Petition for Writ of Habeas
Corpus
Appellant filed another petition for writ of habeas corpus in
the superior court on April 27, 2022. This petition sought relief
on three grounds. First, appellant asserted that the CDCR
violated his due process rights by refusing to accept jurisdiction
over his “legally invalid sentence.” Appellant asserted that he
attempted to file a complaint regarding SB 136 and SB 483 in the
grievance office of the state prison, but the CDCR denied it based
on a lack of jurisdiction. Appellant attached the response he
received, which stated that his claim (which is not itself in the
record) “does not involve a claim against the Department or
departmental staff so it is outside the jurisdiction of the
Department.” He requested that the court strike his six one-year
prison priors pursuant to SB 136 and SB 483.
In the second asserted ground for relief, appellant
suggested that SB 81 required the court to strike unspecified
enhancements from his sentence in the furtherance of justice. He
asserted that mitigating circumstances present included “(a)
Discriminatory racial Impact, (b) Multiple Enhancement alleged
in a single case. (f) Current Offense is a Non-Violent offense
defined by Penal Code sec.667.5(g)(1), and (h) Enhancement
based on a prior conviction over five years old.”
In the third asserted ground for relief, appellant reiterated
the contentions regarding SB 620 and “Senate Bill 1385” that he
made in the April 21, 2022 writ petition. He also requested
counsel pursuant to AB 1540.
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D. May 3, 2022 Petition for Writ of Habeas Corpus
Appellant filed a third petition for writ of habeas corpus in
the superior court on May 3, 2022. This petition was
substantively identical to the petition filed on April 27, 2022.
E. July 19, 2022 Objections and July 20, 2022
Declaration
On July 5, 2022, the superior court issued a minute order
stating that the court had called the case “for habeas corpus
petition.” The order stated, in relevant part: “Defendant is not
present in court, and not represented by counsel[.] [¶] The court
finds good cause to place this matter off calendar this date.
Petition to be addressed in chambers.” The court sent a copy of
the minute order to appellant.
On July 19, 2022, appellant filed objections to the July 5,
2022 minute order. He asserted that the “fair administration of
justice” required appointment of counsel and his presence in
court for a hearing.
On July 20, 2022, appellant filed a declaration stating that
he had filed a petition for writ of habeas corpus on April 17, 2022
[sic] and had requested counsel. He further asserted that the
court on June 27, 2022 had ordered counsel to be appointed by
July 5, 2022; no such order appears in the appellate record.
Appellant also stated that the court ordered the matter off
calendar “and counsel not be appointed.”
IV. Superior Court Ruling
On July 20, 2022, the court issued a minute order
addressing the filings summarized above. It stated that it had
received and reviewed “all the above listed petitions pursuant to
Penal Code 1171.1 [now section 1172.75] and SB483,” and also
considered “issues raised pursuant to SB1393, SB136 and
SB620.” The court summarily denied the petitions as a matter of
law. It stated: “There is no provision within the statute which
10
allows for an inmate to initiate the review process. [¶] Per Penal
Code section 1171.1, the California Department of Corrections,
[sic] and Rehabilitation (CDCR) is given the task of identifying
inmates who have a now invalid enhancement as part of their
sentence. The CDCR will provide the names of affected inmates
within specified time limits. [¶] Petitioner’s request is premature
given the process established by the Legislature. [¶] As to
petitioner’s claims raised pursuant to SB1393, and SB620, all of
these have been raised and ruled on in previous writs.[5] [¶] For
the foregoing reasons, the petitions, all five (5) of them, are
denied without prejudice.”
V. Appeal
Appellant timely filed a notice of appeal. Appellant’s
appointed counsel filed a brief raising no issues and requesting
that this court follow the procedures forth in Serrano, supra, 211
Cal.App.4th 496. (See also People v. Delgadillo (2022) 14 Cal.5th
216, 226, 231-232 (Delgadillo) [defendant not entitled to
independent review of the record in appeal from denial of
postconviction relief, and appeal may be dismissed as abandoned
if no supplemental brief is filed].) The court notified appellant he
had 30 days to file a supplemental brief and that his appeal may
be dismissed as abandoned if he declined to do so. Appellant
timely filed a supplemental brief.
5 Indeed, a different panel of this court affirmed an earlier
order denying appellant’s requests for relief under SB 1393 and
SB 620. (See People v. Miller (Nov. 16, 2021, B310804) [nonpub.
opn.].) Other panels of this court also have denied petitions for
writ of habeas corpus substantively similar to those appellant
filed below in this case. (See Miller v. Superior Court of Los
Angeles County (Sept. 9, 2022, No. B322495) [nonpub. order]; In
re Miller (March 24, 2022, No. B318764) [nonpub. order].)
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DISCUSSION
We conclude this court lacks jurisdiction over this appeal
because neither the denial of appellant’s sentencing motions nor
the denial of his petitions for writ of habeas corpus is an
appealable order.
Section 1237, subdivision (b) makes post-judgment orders
affecting a criminal defendant’s substantial rights appealable.
(§ 1237, subd. (b).) However, post-judgment orders denying
motions to vacate or modify a sentence generally are not
appealable under this statutory section.
“The general rule is that ‘once a judgment is rendered and
execution of the sentence has begun, the trial court does not have
jurisdiction to vacate or modify the sentence.’ [Citations.]” (King,
supra, 77 Cal.App.5th at p. 634.) When the superior court does
not have jurisdiction to rule on a motion to vacate or modify a
sentence, an order denying such a motion cannot affect the
defendant’s substantial rights. (Id. at p. 639.) The unauthorized
sentence doctrine does not provide a jurisdictional loophole “for a
trial court to rule on an incarcerated defendant’s motion to
correct an alleged illegal sentence after the conviction is final and
after the execution of the sentence has begun.” (Id. at pp. 641-
642.)
There are limited exceptions to this general rule. For
instance, the superior court retains jurisdiction to resentence a
defendant where “specific statutory avenues” authorize
defendants to seek resentencing. (King, supra, 77 Cal.App.5th at
p. 637.) Although it provides a procedure for resentencing,
section 1172.75 does not authorize a defendant to initiate a
request for resentencing via motion or other means. “[A]ny
review and verification by the court in advance of resentencing is
only triggered by receipt of the necessary information from the
CDCR Secretary or a county correctional administrator, not by
12
any individual defendant.” (Burgess, supra, 86 Cal.App.5th at p.
384.) The same is true of section 1172.1, which permits recall
and resentencing only at the request of CDCR and other entities.
(See § 1172.1, subd. (a)(1).) SB 81 similarly does not authorize
motions for relief by defendants sentenced prior to January 1,
2022. (See § 1385, subd. (c)(7).) The superior court accordingly
lacked jurisdiction over appellant’s motion for resentencing, and
we lack jurisdiction to hear the appeal from the denial of that
motion.
We note that once the statutory prerequisites have been
complied with and the pertinent information is received from the
CDCR, appellant may, and likely will, be entitled to have his
sentence recalled and be resentenced pursuant to section
1172.75. At that time, he may be entitled to resentencing, and to
the striking of one or more of the enhancements he challenges.
However, as the superior court found, appellant is not entitled to
initiate the section 1172.75 process and recall his sentence on his
own motion, in advance of the process contemplated by statute.
(See Burgess, supra, 86 Cal.App.5th at 384.) Without a statutory
or other avenue to recall the sentence, the superior court lacked
jurisdiction to hear appellant’s motion, and we lack jurisdiction to
hear the appeal.
We also lack jurisdiction to hear an appeal from the denial
of appellant’s petitions for writ of habeas corpus. “A petitioner
currently has no right to appeal from a superior court denial of
habeas corpus relief. Instead, review is obtained by filing a new
habeas corpus petition in a higher court.” (Briggs v. Brown,
supra, 3 Cal.5th at p. 836.)
None of the contentions in appellant’s supplemental brief
alters this conclusion or entitles him to relief. We address each
in turn. (See Delgadillo, supra, 14 Cal.5th at pp. 231-232.)
13
First, appellant contends his appellate counsel rendered
ineffective assistance. However, there is no constitutional right
to effective assistance of counsel in state postconviction
proceedings or proceedings to obtain collateral relief from a
judgment of conviction. (Delgadillo, supra, 14 Cal.5th at pp. 226-
227.) Even if there were, appellant has not demonstrated that
his counsel’s performance fell below an objective standard of
reasonableness or that he suffered prejudice as result. (See
Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Similarly, there is no indication that appellant had a right to
counsel below or was prejudiced by the superior court’s failure to
appoint counsel.
Next, acknowledging the process for SB 483 relief set forth
in section 1172.75, appellant contends that CDCR should have
identified him as an eligible candidate for resentencing by March
1, 2022, and that he should have been resentenced by October 1,
2022. Appellant contends he falls within this group of inmates
because he “has already served his base term of (19) years” and
“is now only doing enhancement time.”
Appellant misapprehends the calculation of “base terms”
and “enhancement time” for the purposes of section 1172.75. For
purposes of section 1172.75, “all other enhancements shall be
considered to have been served first.” (§ 1172.75, subd. (b)(1).)
This means that appellant will not be serving what he terms
invalid “enhancement time”—no longer valid one-year prison
priors imposed pursuant to section 667.5, subdivision (b)—until
he completes all other portions of his sentence. Appellant has not
yet reached that milestone. His “base term” of non-stayed,
unenhanced sentences for the actual crimes he committed totaled
15 years, four months. His firearm and great bodily injury
enhancements total an additional 20 years, 8 months. Only after
that 36 years of time is served will appellant begin serving his
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four remaining one-year prison priors. Appellant was sentenced
in 1998; he has thus served approximately 25 years and has
provided no evidence that he is, for the purposes of section
1172.75, serving a sentence based on any invalid section 667.5,
subdivision (b) enhancements. To the extent he may be eligible
for relief under SB 483, appellant should be in the group of
inmates who must be resentenced by December 31, 2023. To the
extent he contends he should be resentenced now for the sake of
efficiency, he impermissibly relies on an unpublished opinion that
may not be cited or relied upon. (Cal. Rules of Court, Rule
8.1115(a).)
Appellant next contends that his sentence is unauthorized
and therefore may be corrected at any time, specifically, by this
court. He further asserts we are required to do so to ensure he
receives speedy relief under habeas corpus principles. As noted
above, the unauthorized sentence doctrine “does not itself create
jurisdiction for a trial court to rule on an incarcerated defendant’s
motion to correct an alleged illegal sentence.” (King, supra, 77
Cal.App.5th at pp. 641-642.) Nor is the denial of appellant’s
habeas petitions an appealable order. While appellant urges us
to construe his appeal as a petition for writ of habeas corpus, we
decline to do so. If appellant wishes to pursue habeas relief, he
must do so in accordance with the procedures governing such
petitions.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
MORI, J.
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