People v. Hodges

Filed 6/2/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B323199
(Super. Ct. No. BA205391)
Plaintiff and Respondent, (Los Angeles County)
v.
SHIRILVIN DWAYNE
HODGES,
Defendant and Appellant.
Shirilvin Dwayne Hodges purports to appeal from the trial
court’s order denying his motion to vacate his sentence. We
appointed counsel to represent him. After an examination of the
record, counsel filed an opening brief raising no issues and
requesting that we independently review the record pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appellant has filed
two supplemental briefs, in propria persona. We will dismiss the
purported appeal for lack of jurisdiction.
Facts and Procedural Background
The following procedural history is drawn from this court’s
unpublished decision in appellant’s direct appeal from his
conviction (People v. Shirilvin Dwayne Hodges (Feb. 15, 2005,
B171277) [nonpub. opn.]): In July 2001, appellant was convicted
by jury of the following violations of the Penal Code: kidnapping
(§ 207, subd. (a)), three counts of forcible oral copulation (§ 288a,
subd. (c)(2)), two counts of assault with a firearm (§ 245, subd.
(a)(2)), and possession of a firearm by a felon (§ 12021, subd.
(a)(1)). The jury further found that appellant personally used a
firearm in committing all but the firearm possession offense (§§
12022.3, subd. (a), 12022.5, subd. (a), (d), 12022.53, subd. (a)),
and that he had suffered three prior serious felony convictions (§
667, subd. (a)(1).) The trial court sentenced appellant as a third
strike offender to a total term in state prison of 230 years to life.
We affirmed the conviction in a nonpublished opinion.
(People v. Hodges, supra, B171277.)
A Habeas Petition Masquerading as a Postjudgment Motion
In May 2022, appellant filed a motion to vacate his
sentence on the basis that the 230 years to life sentence was
unauthorized because his three prior violent or serious felony
convictions under the “Three Strikes” law all arose from the same
underlying case. Consequently, appellant contended he should
only be sentenced as a second strike offender. This was, in
essence, a petition for a writ of habeas corpus. The trial court
denied relief. That should have ended this litigation. (E.g.,
People v. Garrett (1998) 67 Cal.App.4th 1419 [denial of a petition
for writ of habeas corpus is not appealable]; see also In re
Hochberg (1970) 2 Cal.3d 870, 876 [same].)
Discussion
Because the instant purported appeal is from an order
denying postconviction relief rather than a first appeal as of right
from a criminal conviction, appellant is not entitled to our
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independent review of the record pursuant to Wende, supra, 25
Cal.3d 436, or its federal constitutional counterpart, Anders v.
California (1967) 386 U.S. 738. (Delgadillo, supra, 14 Cal.5th at
pp. 221-222, 230; see People v. Kelly (2006) 40 Cal.4th 106, 119
[independent judicial review mandated by Anders applies only to
first appeal as of right]; People v. Serrano (2012) 211 Cal.App.4th
496, 503.) However, if the underlying order were appealable,
appellant would be entitled to our consideration of any
contentions raised in his supplemental brief. (See Delgadillo, at
p. 232; Serrano, at p. 503.)1 We summarily reject appellant’s
claims.
In his first supplemental brief, appellant asks this court to
“disregard” counsel’s opening brief and “reappoint . . . another
lawyer,” stating various contentions. For example, appellant
contends counsel was “ineffective” because he did not speak with
appellant in person, did not address specific case law appellant
believed applied to his case, and did not challenge DNA evidence
presented at trial. According to appellant, “[it is] virtually
improbable” that counsel could have “thoroughly review[ed]” the
record given the timeframe provided.
Appellant’s contentions are meritless.
Here, counsel filed a declaration with the opening brief
and declared under penalty of perjury: “I have read the entire
record. I have discussed in correspondence with my client my
findings and his views regarding the case.” Although appellant
1 On May 15, 2023, appellant filed a second supplemental
brief with our permission. We have read and considered the
contentions therein, which are generally repetitive and attack the
validity of appellant’s sentence as a third strike offender. As we
explain below, appellant’s contentions are not now cognizable.
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would have preferred to speak directly to counsel, there is no
evidence that appellant’s interests were not well protected by
counsel’s review of the record and his written correspondence to
that effect.
Furthermore, the record shows that appellant has
previously filed another request in the trial court challenging his
sentence as a third strike offender and citing People v. Vargas
(2014) 59 Cal.4th 635, the case appellant contends counsel should
have addressed in this appeal. The trial court properly construed
the document as a habeas petition and denied it, concluding
appellant was “subject to an enhanced sentence under the ‘Three
Strikes’ law.” It also expressly found that “each prior crime
stems from distinct, separate, and independently-punishable
acts . . . .”
Given these facts, appellant’s disagreement with counsel’s
legal determination does not amount to ineffective representation
on appeal. “A defendant seeking to discharge appointed counsel
and substitute another attorney must establish either that
appointed counsel is not providing adequate representation or
‘that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to
result.’” (People v. Mayfield (1997) 14 Cal.4th 668, 795, overruled
on another point in People v. Scott (2015) 61 Cal.4th 363, 390, fn.
2.) Appellant has made no such showing.
We have no jurisdiction to entertain this purported appeal
from the denial of appellant’s “motion.” We construe through
form to substance. As indicated, this request is properly
construed as a petition for writ of habeas corpus. The right to
appeal is statutory and a judgment or order is not appealable
unless expressly authorized by statute. (People v. Mazurette
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(2001) 24 Cal.4th 789, 792.) An order made after judgment
affecting a defendant’s substantial rights is appealable. (Pen.
Code, § 1237, subd. (b).) But, the trial court had no jurisdiction to
entertain the request filed more than 20 years after entry of
judgment. “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.’” (People v.
King (2022) 77 Cal.App.5th 629, 634, quoting People v. Torres
(2020) 44 Cal.App.5th 1081, 1084.) Because the trial court did
not have jurisdiction to grant appellant’s request, its order could
not, and does not, affect his substantial rights. The habeas
denial order is not appealable pursuant to Penal Code section
1237, subdivision (b). (King, at p. 634.)
Disposition
The appeal is dismissed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
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Craig E. Veals, Judge
Superior Court County of Los Angeles
______________________________
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.