People v. Newell

Filed 7/6/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B320195
(Super. Ct. No. BA379987)
Plaintiff and Respondent, (Los Angeles County)
v.
MICHAEL NEWELL,
Defendant and Appellant.
There is no appeal absent authority to appeal.
Michael Newell purports to appeal the denial of his petition
for resentencing based on Senate Bill No. 483 (2021-2022 Reg.
Sess.) (Sen. Bill No. 483). In 2012, Newell was sentenced to state
prison for 49 years to life. He claims his current sentence is
invalid due to recent legislative changes involving sentencing
enhancements. Sen. Bill No. 483 establishes a uniform procedure
to allow state prisoners with currently invalid sentences to be
resentenced. Newell’s petition is not authorized. We dismiss.
FACTS
In 2012, a jury found Newell guilty of second degree
robbery (Pen. Code, § 211) 1 and assault by means likely to
produce great bodily injury (§ 245, subd. (a)(1)). As to each
offense, the jury found Newell personally inflicted great bodily
injury. (§ 12022.7, subd. (a).) Newell fell within the purview of
the three strikes law. The trial court found that Newell had five
prior serious felony convictions and that he had served one prior
prison term. (§ 667.5, subd. (b).)
The trial court sentenced Newell to an aggregate state
prison term of 49 years to life. His sentence included several
enhancements–a one-year consecutive term for a prison “prior”
(§ 667.5, subd. (b)), and a 20-year consecutive sentence for four
prior serious felony convictions, five years for each, pursuant to
section 667.
Years after Newell’s judgment became final, the
Legislature changed the law regarding sentencing enhancements.
It gave trial courts discretion to strike the five-year
enhancements for prior serious felony convictions and it
invalidated the one-year section 667.5, subdivision (b)
enhancement except for sexually violent offenses. (§ 1172.75,
subd. (a), added by Stats. 2021, ch. 728, § 3.) The Legislature
passed Sen. Bill No. 483 to allow prisoners whose judgments of
conviction were final a procedure to obtain retroactive
resentencing because of these recent changes to the sentencing
law. (§ 1172.75, subd. (a).)
Newell filed an in propria persona petition for resentencing
with the sentencing court citing Sen. Bill No. 483.
1 All statutory references are to the Penal Code.
2
The trial court denied Newell’s petition. It found Newell
must wait for the Department of Corrections and Rehabilitation
(DCR) to file a Sen. Bill No. 483 notice with the court to initiate
resentencing.
DISCUSSION
Sen. Bill No. 483 Resentencing Procedure
Sen. Bill No. 483 established the procedure to benefit state
prisoners whose sentences are not currently valid due to recent
changes in the law involving sentencing enhancements.
Section 1172.75 provides, in relevant part:
“(a) 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.
“(b) The Secretary of the Department of Corrections and
Rehabilitation [DCR] . . . shall identify those persons in their
custody currently serving a term for a judgment that includes an
enhancement described in subdivision (a) and shall provide the
name of each person, along with the person’s date of birth and
the relevant case number or docket number, to the sentencing
court that imposed the enhancement.” (Italics added.)
Section 1172.75 requires the sentencing court to resentence
defendants whose prior sentences include enhancements that are
no longer valid or that now provide the court with new discretion
to strike them.
Section 1172.75, subdivision (d)(1), provides: “Resentencing
pursuant to this section shall result in a lesser sentence than the
one originally imposed as a result of the elimination of the
repealed enhancement, unless the court finds by clear and
3
convincing evidence that imposing a lesser sentence would
endanger public safety. Resentencing pursuant to this section
shall not result in a longer sentence than the one originally
imposed.”
Section 1172.75, subdivision (d)(2), provides: “The court
shall apply the sentencing rules of the Judicial Council and apply
any other changes in law that reduce sentences or provide for
judicial discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing.” (Italics added.) The court
must appoint counsel for the defendant and hold a resentencing
hearing unless a hearing is waived. (Id., subds. (d)(5) & (e).)
Section 1172.75 contains no provision for an individual
defendant to file the type of petition Newell has filed. (People v.
Burgess (2022) 86 Cal.App.5th 375, 384.) “[S]ection 1172.75
simply does not contemplate resentencing relief initiated by any
individual defendant’s petition or motion.” (Ibid.)
Newell has not shown that the DCR did not comply with its
statutory duty.
DISPOSITION
The appeal is dismissed.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
4
William N. Sterling, Judge *
Superior Court County of Los Angeles
______________________________
Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
*Retired judge of the Los Angeles Superior Court assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
5