People v. Mendez CA2/4

Filed 6/6/23 P. v. Mendez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B322637
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA063097)
v.
FRANCISCO MENDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed in part,
dismissed in part.
Michael C. Sampson, 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, Senior
Assistant Attorney General, Noah P. Hill and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________________________
Defendant Francisco Mendez appeals from a
postjudgment order denying his petition to vacate his
murder conviction under Penal Code section 1172.6.1
Defendant does not challenge the merits of the postjudgment
order. Instead, he contends for the first time in this appeal
that a portion of his sentence is unauthorized. The Attorney
General contends, and we agree, that we have no jurisdiction
to entertain defendant’s contention. We dismiss this portion
of defendant’s appeal and affirm the order denying his
petition.
BACKGROUND
In 2002, a jury convicted defendant of first degree
murder (§ 187, subd. (a)) and found true the allegation that
defendant committed the murder for the benefit of, at the
direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)). The trial court sentenced defendant
to 25 years to life for murder (§ 190, subd. (a)), and a
consecutive 10 years for the true finding under the gang
enhancement statute (§ 186.22, subd. (b)(1)(C)).
1 Subsequent references to statutes are to the Penal Code.
2
In his direct appeal in 2003, defendant challenged
(1) the sufficiency of evidence supporting his conviction for
murder; (2) the legality of the jury instruction on the gang
enhancement; and (3) the sufficiency of the evidence
supporting the jury’s true finding on the gang enhancement.
We rejected these arguments and affirmed the judgment.
(People v. Francisco Mendez (Apr. 25, 2003, B161165)
[nonpub. opn.].)
On November 1, 2021, defendant filed a postjudgment
petition to have his murder conviction vacated and to be
resentenced on any remaining counts. (§ 1172.6, subd. (a).)
In his petition, defendant alleged that he was convicted of
first degree murder based on the felony-murder rule or the
natural and probable consequences doctrine and could not
now be convicted of murder based on changes to sections 188
and 189. The court appointed defendant counsel and
received briefing by the parties. Following a hearing, the
court found defendant had failed to make a prima facie case
for relief because he was neither tried nor convicted of
murder under the felony-murder rule or the natural and
probable consequences doctrine. The court denied the
petition.
Defendant filed a timely appeal.
DISCUSSION
Defendant does not contest the merits of the trial
court’s order denying his section 1172.6 petition. Instead, he
argues for the first time in this appeal that we must correct
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an unauthorized portion of his sentence. He asserts that
under the gang enhancement statute, the court should not
have added a consecutive 10-year term to what was already
a life sentence but instead should have imposed a minimum
term of 15 years of parole eligibility. (§ 186.22, subds.
(b)(1)(C), (b)(5).)2 The Attorney General acknowledges the
sentencing error, but contends that this court lacks
jurisdiction to entertain defendant’s contention. We agree
with the Attorney General.
A. The Order Denying Defendant’s Section 1172.6
Petition
Defendant filed a postjudgment petition to vacate his
murder conviction under section 1172.6. This section
provides jurisdiction for a trial court to conduct a
resentencing proceeding to vacate convictions based on
“felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
2 Under the gang enhancement statute, the court must impose an
additional and consecutive term of 10 years for the commission of a
violent felony. (§ 186.22, subd. (b)(1)(C).) The court may not impose
an additional 10-year term under the statute for felonies “punishable
by imprisonment in the state prison for life.” (§ 186.22, subd. (b)(5).)
For these offenses, the court must impose a minimum term of 15
calendar years of parole eligibility. (Ibid.) First degree murder is one
offense not subject to the 10-year enhancement. (People v. Lopez
(2005) 34 Cal.4th 1002, 1004, 1008.)
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imputed.” The procedures the trial court must follow in
conducting the proceeding are outlined in Section 1172.6.
Upon the filing of a facially sufficient petition, the trial
court must engage in a “limited” prima facie review. (People
v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) During this
stage of the proceeding, the court “appoints counsel, if
requested; the issue is briefed; and then the court makes one
. . . prima facie determination.” (Id. at p. 966; § 1172.6,
subds. (b)-(c).) If the petitioner does not establish a prima
facie case for relief under the statutory criteria, the court
must deny the petition. (§ 1172.6, subd. (b); Lewis, supra, at
p. 971.) If the court makes a prima facie finding, it must
issue an order to show cause. (§ 1172.6, subd. (c).)
It is only after the court issues an order to show cause
that it holds another hearing “to determine whether to
vacate the murder, . . . conviction and to recall the sentence
and resentence the petitioner on any remaining counts in the
same manner as if the petitioner had not previously been
sentenced, . . .” (§ 1172.6, subd. (d)(1), italics added; see
People v. Howard (2020) 50 Cal.App.5th 727, 741 [in
granting relief under section 1172.6, the court must “‘vacate
the underlying conviction and “any allegations and
enhancements attached to the conviction”’”].)
Here, defendant filed a section 1172.6 petition to
vacate his murder conviction and any allegations and
enhancements attached to the conviction. The court issued
an order denying his section 1172.6 petition at the prima
facie stage of review. Despite filing a notice of appeal from
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this order, defendant does not purport to challenge the
court’s prima facie inquiry or findings. We affirm the court’s
order.
B. We Lack Jurisdiction to Consider Defendant’s
Claim
Defendant’s sole contention, raised for the first time in
this appeal, is that the consecutive 10-year term of
imprisonment imposed under the gang enhancement statute
constitutes an unauthorized sentence. Defendant argues
that an unauthorized sentence may be challenged at any
time, even on appeal from the trial court’s denial of his
section 1172.6 petition. The Attorney General asserts that
we lack jurisdiction to consider defendant’s contention. We
agree.
“‘As a general rule, a criminal defendant who fails to
object at trial to a purportedly erroneous ruling forfeits the
right to challenge that ruling on appeal.’ (People v. Anderson
(2020) 9 Cal.5th 946, 961.) But there is an exception to this
rule for an unauthorized sentence, . . . (In re G.C. (2020) 8
Cal.5th 1119, 1130 (G.C.).) ‘The unauthorized sentence
doctrine is designed to provide relief from forfeiture for
“obvious legal errors at sentencing that are correctable
without referring to factual findings in the record or
remanding for further findings.” [Citation.] It applies when
the trial court has imposed a sentence that “could not
lawfully be imposed under any circumstance in the
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particular case.”’ (Anderson, [supra,] at p. 962.)” (People v.
Moore (2021) 68 Cal.App.5th 856, 865 (Moore).)
“By permitting a defendant to challenge an
unauthorized sentence on appeal even in the absence of an
objection below, the unauthorized sentence rule constitutes a
narrow exception to the forfeiture doctrine (In re Sheena K.
(2007) 40 Cal.4th 875, 886–887), ‘“not to the jurisdictional
requirement of a timely notice of appeal”’ or other means of
properly challenging the judgment of conviction. (G.C.,
supra, 8 Cal.5th at p. 1129.) In order to invoke the
unauthorized sentence rule in the first instance, our
Supreme Court has held the reviewing court ‘must have
jurisdiction over the judgment.’ (G.C., [supra,] at p. 1130.)”
(Moore, supra, 68 Cal.App.5th at p. 865; accord, People v.
King (2022) 77 Cal.App.5th 629, 637 (King).) The
unauthorized sentence doctrine does not itself create
jurisdiction for an appellate court to rule on the legality of a
sentence. (Id. at pp. 636-637; Moore, supra, at p. 866.)
Where, as here, execution of sentence has commenced
and the judgment is final, the trial court is generally
“deprived of jurisdiction to resentence” a criminal defendant.
(People v. Karaman (1992) 4 Cal.4th 335, 344, citing Dix v.
Superior Court (1991) 53 Cal.3d 442, 455; People v.
Hernandez (2019) 34 Cal.App.5th 323, 326.) To obtain
resentencing on a final judgment, a defendant must file a
petition for writ of habeas corpus (G.C., supra, 8 Cal.5th at
p. 1130), or proceed by way of a special statutory procedure
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(e.g., §§ 1170, subd. (d)(2), 1170.18, 1170.91, 1170.12, 1172.1,
1172.2, 1172.6, 1172.7).
As discussed, section 1172.6 confers limited, specified
jurisdiction on a trial court. (Accord, People v. Howard
(1997) 16 Cal.4th 1081, 1089 [§ 1170, subd. (d)]; People v.
Dynes (2018) 20 Cal.App.5th 523, 528 [Proposition 57];
People v. Clark (2017) 8 Cal.App.5th 863, 873 [§ 1170.126];
see Abelleira v. District Court of Appeal, Third Dist. (1941)
17 Cal.2d 280, 288 [“[T]hough the court has jurisdiction over
the subject matter and the parties in the fundamental sense,
it [may not have] ‘jurisdiction’ (or power) to act except in a
particular manner, or to give certain kinds of relief, or to act
without the occurrence of certain procedural prerequisites”].)
Pursuant to that statute, the court could only determine
whether defendant made a prima facie showing that he was
convicted of first degree murder under a now invalid theory
of liability, such as the felony-murder rule or natural and
probable consequences doctrine. Because defendant’s record
of conviction refuted the allegations in his petition as a
matter of law, the court could do nothing but deny his
petition. (Lewis, supra, 11 Cal.5th at p. 971; see People v.
Harden (2022) 81 Cal.App.5th 45, 52 [“if the record shows
that the jury was not instructed on either the natural and
probable consequences or felony-murder doctrines, then the
petitioner is ineligible for relief as a matter of law”].)
In other words, to the extent that section 1172.6
provides for resentencing, it is resentencing only for
petitioners who meet the statutory criteria for relief
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pursuant to section 1172.6. But where no prima facie
showing has been made that the petitioner was tried or
convicted under a now invalid theory of homicide liability,
section 1172.6 grants the trial court no power to do anything
but deny the petition. (Accord, People v. Brown (2014) 230
Cal.App.4th 1502, 1511-1512 [reaching same result under
§ 1170.126].) We therefore agree with the Attorney General
that the trial court lacked jurisdiction to consider
defendant’s claim of sentencing error at this stage of the
underlying proceeding. (See Moore, supra, 68 Cal.App.5th at
p. 866.)3
In sum, we conclude that the trial court lacked
jurisdiction to consider defendant’s claim of sentencing error,
and as a result, we also lack jurisdiction to entertain
defendant’s claim in this appeal. (King, supra, 77
Cal.App.5th at p. 633; accord, Moore, supra, 68 Cal.App.5th
at p. 866.) We therefore dismiss the portion of defendant’s
appeal purporting to challenge an unauthorized sentence.
(People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; People
v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) Defendant is
not without recourse, as he remains free to challenge his
3 We express no opinion on a trial court’s authority to correct an
unauthorized sentence after issuing an order to show cause and
vacating a conviction under section 1172.6, subdivision (d). (See People
v. Padilla (2022) 13 Cal.5th 152, 161-163 [upon proof that a defendant
is entitled to resentencing on collateral review, “the result is vacatur of
the original sentence, whereupon the trial court may impose any
appropriate sentence”].)
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sentence in a petition for a writ of habeas corpus. (See King,
supra, at p. 640.)
DISPOSITION
The order denying defendant’s petition for resentencing
under section 1172.6 is affirmed. The portion of defendant’s
appeal purporting to challenge as unauthorized the 10-year
term of imprisonment imposed under section 186.22,
subdivision (b)(1)(C) is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
CURREY, Acting P. J.
COLLINS, J.
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