People v. Escobedo

Filed 9/12/23; on rehearing
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B322608
(Super. Ct. No. 2016022491)
Plaintiff and Respondent, (Ventura County)
v. OPINION ON REHEARING
JACOB ESCOBEDO,
Defendant and Appellant.
THE PEOPLE, 2d Crim. No. B323765
(Super. Ct. No. 2014022397)
Plaintiff and Respondent, (Ventura County)
v.
ARTHUR CHAVIRA,
Defendant and Appellant.
Jacob Escobedo purports to appeal from the trial court’s
postjudgment order denying his petition to strike two prior prison
term enhancements imposed pursuant to former Penal Code
section 667.5, subdivision (b) (667.5(b)).1 In a separate
proceeding, Arthur Chavira purports to appeal from a similar
postjudgment order. We dismiss both appeals. The orders
appealed from are nonappealable because the trial court lacked
jurisdiction to adjudicate the petitions.
Appellants’ prior prison terms had been served for offenses
that were not sexually violent. After imposition of the prior
prison term enhancements, former section 667.5(b) was amended
to limit its application to prison terms served for sexually violent
offenses. Appellants contend the trial court erroneously denied
their petitions to strike the now invalid prior prison term
enhancements. But as we explain in this opinion, the Legislature
has not authorized their appeals from the trial court’s orders. “‘It
is settled that the right of appeal is statutory and that a
judgment or order is not appealable unless expressly made so by
statute.’” (People v. Maszurette (2001) 24 Cal.4th 789, 792.)
Section 1237, subdivision (b) provides that a defendant may
appeal “[f]rom any order made after judgment, affecting the
substantial rights of the party.” (Italics added.) The present
appeals are examples of an all-too-familiar pattern in which the
Court of Appeal is becoming a court of purported postjudgment
appeals from orders that are nonappeable because they do not
affect the appellant’s substantial rights. (See, e.g., People v.
Hodges (2023) 92 Cal.App.5th 186, 190 [“Because the trial court
did not have jurisdiction to grant appellant's request, its order
could not, and does not, affect his substantial rights”]; People v.
Alexander (2020) 45 Cal.App.5th 341, 344 [“the trial court
correctly concluded that it lacked jurisdiction to grant
Alexander's motion. . . . An order denying a motion the court
1 All statutory references are to the Penal Code.
2
lacks jurisdiction to grant does not affect a defendant's
substantial rights. [Citation.] Any appeal from such an order
must be dismissed”].)
One-Year Prior Prison Term
Enhancement: Statutory History
We do not review the wisdom of legislative enactments.
(People v. Pecci (1999) 72 Cal.App.4th 1500, 1506, citing Wells
Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099.)
Since at least 1923 recidivism statutes have been a staple in
California jurisprudence. But the Legislature has recently
elected to curtail their use in some instances. (Former § 644,
subds. (a), (b); In re Rosencrantz (1928) 205 Cal. 534, 536; Fricke
& Alarcon, California Criminal Law (10th ed. 1970) ch. 2, pp. 20-
21.)
“Prior to January 1, 2020, section 667.5, subdivision (b)
required trial courts to impose a one-year sentence enhancement
for each true finding on an allegation the defendant had served a
separate prior prison term and had not remained free of custody
for at least five years. (Former § 667.5, subd. (b).) Effective
January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.)
(Stats. 2019, ch. 590) [(‘SB 136’)] amended section 667.5 by
limiting the prior prison term enhancement to only prior terms
for sexually violent offenses. [Citations.] Enhancements based
on prior prison terms served for other offenses became legally
invalid. [Citation.]” (People v. Burgess (2022) 86 Cal.App.5th
375, 379-380, review denied March 15, 2023 (Burgess).)
“Later, in 2021, the Legislature enacted Senate Bill No. 483
(2021-2022 Reg. Sess.) [(‘SB 483’)]. This bill sought to make the
changes implemented by [SB] 136 retroactive. . . . It took effect
on January 1, 2022, and added former section 1171.1, now section
3
1172.75, to the Penal Code. (Stats. 2021, ch. 728, § 3; Stats.
2022, ch. 58, § 12.)” (Burgess, supra, 86 Cal.App.5th at p. 380.)
“Section 1172.75 states that ‘[a]ny sentence enhancement
that was imposed prior to January 1, 2020, pursuant to
subdivision (b) of [s]ection 667.5, except for any enhancement
imposed for a prior conviction for a sexually violent offense . . . is
legally invalid.’ (§ 1172.75, subd. (a).) The statute further
establishes a mechanism to provide affected defendants a remedy
for those legally invalid enhancements. Subdivision (b) of
section 1172.5 directs the Secretary of the California Department
of Corrections and Rehabilitation (‘CDCR’) and the correctional
administrator of each county to ‘identify those persons in their
custody currently serving a term for a judgment that includes an
enhancement described in subdivision (a) and . . . 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.’ (§ 1172.75, subd. (b).) The
statute provides this is to be done in two groups. First, ‘[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 [affected] enhancement.’ (§ 1172.75, subd.
(b)(1).) And second, ‘[b]y July 1, 2022, for all other individuals.’
(§ 1172.75, subd. (b)(2).)”2 (Burgess, supra, 86 Cal.App.5th at p.
380.)
2 In the trial court appellants alleged that, pursuant to
section 1172.75, subdivision (b)(1), they were included in the list
of inmates in the first group provided by CDCR to the Ventura
County Superior Court. If appellants were in the first group, this
would only have given them priority over inmates in the second
group.
4
“After the trial court receives from the CDCR and county
correctional administrator the information included in
subdivision (b) of section 1172.5, ‘the court shall review the
judgment and verify that the current judgment includes a
sentencing enhancement described in subdivision (a),’ and if so,
‘recall the sentence and resentence the defendant.’ (§ 1172.75,
subd. (c).) This part of section 1172.75 also divides relief into two
parts. Specifically, the review and resentencing shall be
completed ‘[b]y October 1, 2022, for individuals who have served
their base term and any other enhancement and are currently
serving a sentence based on the [affected] enhancement’ (§
1172.75, subd. (c)(1)) and ‘[b]y December 31, 2023, for all other
individuals’ (§ 1172.75, subd. (c)(2)).” (Burgess, supra, 86
Cal.App.5th at pp. 380-381.)
Procedural History
Escobedo
In 2016 a jury convicted Escobedo of dissuading a witness
from testifying in violation of Penal Code section 136.1,
subdivision (a)(1). We refer to this conviction as “the 2016
conviction.” The trial court found true two prior prison terms
within the meaning of former section 667.5(b). He was sentenced
to prison for five years – the three-year upper term for dissuading
a witness plus a consecutive sentence of one year for each of the
two prior prison terms.
At the time of sentencing for the 2016 conviction, Escobedo
received credit of 401 days for time served. While serving the
remainder of his five-year prison sentence, in September 2017
Escobedo was convicted of possessing a weapon while confined in
a penal institution. (§ 4502, subd. (a).) He was sentenced to
prison for four years. This sentence was not increased by a prior
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prison term enhancement. The trial court ordered the four-year
sentence to be served consecutively to the five-year sentence he
was currently serving for the 2016 conviction. Section 4502,
subdivision (a) provides that punishment for a violation of the
statute is “to be served consecutively.”
Pursuant to section 1172.75, in June 2022 Escobedo filed a
petition to be resentenced for the 2016 conviction. He requested
that the trial court “strike his two . . . [section] 667.5(b)
enhancements that are now legally invalid.”
Chavira
In 2015 Chavira pleaded guilty to two felonies. We refer to
these convictions as “the 2015 convictions.” He was sentenced to
prison for six years, four months. The sentence included a one-
year consecutive term for a prior prison term enhancement
pursuant to former section 667.5(b).
At the time of sentencing for the 2015 convictions, Chavira
received credit of 449 days for time served. While serving the
remainder of his prison sentence, in March 2019 Chavira was
convicted of possessing a weapon while confined in a penal
institution. (§ 4502, subd. (a).) He was sentenced to prison for
four years. The sentence was not increased by a prior prison
term enhancement. The trial court ordered the four-year
sentence to be served consecutively to the six-year, four-month
sentence he was currently serving for the 2015 convictions.
In October 2021 Chavira was convicted of assault by means
of force likely to produce great bodily injury. (§ 245, subd. (a)(4).)
For this new conviction he was sentenced to prison for four years.
While still imprisoned, in July 2022 Chavira filed a petition
“for a full resentencing hearing pursuant to . . . section 1172.75.”
He sought “to strike [from the sentence for his 2015 convictions]
6
his legally invalid Penal Code [section] 667.5(b) enhancement.”
The petition alleged that if the section 667.5(b) prior is stricken
by the trial court, he would be eligible for immediate release. We
do not credit this allegation. The math just does not support this
claim.
People’s Opposition to Petitions and Trial Court’s Ruling
The People correctly argued that appellants were not
eligible for relief under section 1172.75 because they were not
currently serving the sentences imposed for the prior prison term
enhancements. The sentences for these enhancements had been
completed. When appellants filed their petitions, they were
serving separate sentences imposed for felonies committed while
they were in prison for the 2015 and 2016 convictions.
Accordingly, the trial court correctly denied the petitions.
We are quick to observe that we would grant habeas corpus relief
if it were shown that a prisoner was confined solely because of a
now “invalid” prior prison term.
The Trial Court Lacked Jurisdiction to
Adjudicate Appellants’ Petitions
Section 1172.75 invalidated appellants’ prior prison term
enhancements. But section 1172.75 does not authorize
appellants to file a petition or a motion to strike the unauthorized
enhancements. “[T]he Legislature provided an express system
for the orderly implementation of relief for affected defendants to
receive the benefit of the amended law in a timely manner.
Under this express procedure, any review and verification by the
[trial] 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 any individual
defendant. (§ 1172.75, subds. (b)-(c).) Thus, section 1172.75
7
simply does not contemplate resentencing relief initiated by any
individual defendant's petition or motion.” (Burgess, supra, 86
Cal.App.5th at p. 384, italics added; compare § 1172.75 with
§ 1172.6, which sets forth a detailed procedure whereby a person
convicted of murder under specified theories “may file a petition
with the court that sentenced the petitioner” to vacate the
conviction “and to be resentenced on any remaining counts” (§
1172.6, subd. (a)).)
“[A] ‘freestanding motion [or petition] challenging an
incarcerated defendant’s sentence is not a proper procedural
mechanism to seek relief. A motion [or petition] is not an
independent remedy, but must be attached to some ongoing
action. [Citation.] Thus, a defendant who wishes to challenge a
sentence as unlawful after the defendant’s conviction is final and
after the defendant has begun serving the sentence must do more
than simply file a motion [or petition] in the trial court making
an allegation that the sentence is legally infirm.’” (Burgess,
supra, 86 Cal.App.5th at p. 381, italics added.)
Here, there was no “ongoing action” to which appellants’
petitions could attach. (Burgess, supra, 86 Cal.App.5th at p. 381.)
We reject appellants’ claim that they were authorized to file a
resentencing petition because they were “on the CDCR list of
eligible inmates submitted to the Superior Court” pursuant to
section 1172.75, subdivision (b)(1). (See fn. 2 at p. 4, ante.)
“[E]ven after a judgment is final, the court retains jurisdiction to
resentence the defendant pursuant to ‘specific statutory avenues
for incarcerated defendants to seek resentencing in particular
cases’ . . . .” (Burgess, supra, at p. 381, italics added.) No such
“‘specific statutory avenues’” permitted appellants to petition for
relief pursuant to section 1172.75. (Again, compare § 1172.75
8
with § 1172.6; when the legislature wants to authorize
defendants to seek relief by way of a petition, as in section
1172.6, it knows how to do so.)
Appellants filed freestanding petitions “to correct an illegal
sentence years after [their] conviction[s] became final and [they]
had begun serving [their] sentence[s]. . . . The trial court lacked
jurisdiction to adjudicate [the petitions] for resentencing, and we
lack jurisdiction over [the] appeal[s] from the [petitions’] denial.”
(Burgess, supra, 86 Cal.App.5th at p. 382; see People v. King
(2022) 77 Cal.App.5th 629, 633 (King) [“Although King correctly
contends that the sentence on [his] conviction . . . was
unauthorized, we conclude that the trial court had no jurisdiction
to entertain King’s motion to vacate his sentence, and therefore
this court has no appellate jurisdiction to entertain the appeal”].)
“The unavailability of a motion procedure does not deprive
wrongfully incarcerated defendants of a remedy. A defendant
who is serving a longer sentence than the law allows may always
challenge the sentence in a petition for a writ of habeas corpus.
Indeed, the purpose of the writ is to give summary relief against
such illegal restraints of personal liberty.” (King, supra, 77
Cal.App.5th at p. 640; see Burgess, supra, 86 Cal.App.5th at p.
381 [“even after a judgment is final, . . . ‘incarcerated defendants
[may] seek resentencing . . .’ pursuant to a ‘properly filed’ habeas
corpus petition”].)
Petition for Rehearing and Motion to Augment Record
We granted appellants’ petition for rehearing. In their
petition appellants “acknowledge . . . [they] fil[ed] documents
styled as ‘Petitions’ and consistently referenc[ed] the underlying
actions as ‘petitions for resentencing.’” But appellants claim we
erroneously concluded they had filed “‘freestanding petitions’ for
9
relief.” Appellants argue they “filed pleadings through appointed
counsel in accord with a rolling calendar procedure agreed upon
by the parties after a series of collaborative meetings between the
Superior Court, the District Attorney’s office, and the Public
Defender’s Office, after the California Department of Corrections
. . . transmitted its initial resentencing list to the court in
February of 2022.”
The record on appeal does not support the existence of such
“a rolling calendar procedure agreed upon by the parties.” The
day after the petition for rehearing was filed, appellants filed a
motion to augment the record on appeal to include a purported
agreed statement that allegedly shows such a procedure existed.
The motion is denied because the Ventura County District
Attorney did not sign the agreed statement. (Cal. Rules of Court,
rule 8.134(a)(1) [“The [agreed] statement . . . must be signed by
the parties”].)
Even if the parties had agreed upon such “a rolling
calendar procedure,” their agreement would not have conferred
jurisdiction upon the superior court to adjudicate their petitions
for resentencing. “‘Jurisdiction of the subject matter cannot be
given, enlarged or waived by the parties . . . .’” (Rockefeller
Technology Investments (Asia) VII v. Changzhou SinoType
Technology Co. (2020) 9 Cal.5th 125, 139.) Appellants’ petitions
would still have been unauthorized “freestanding petitions”
because “there was no ‘ongoing action’ to which [they] could
attach.” (Ante, at p. 8; see King, supra, 77 Cal.App.5th at p. 640.)
Appellants’ convictions had been final for years, and appellants
had completed serving the sentences imposed for the convictions.
Moreover, there were no “‘specific statutory avenues for
10
[appellants] to seek resentencing . . . .’” (Burgess, supra, 86
Cal.App.5th at p. 381.)
In their petition for rehearing, appellants contend our
“decision turns on an issue not raised by the Parties.” The issue
is whether they filed “‘freestanding petitions’ for relief.”
Appellants maintain that, pursuant to Government Code section
68081, “[t]he parties have a right to brief this issue . . . .”
Government Code section 68081 provides, “Before . . . a court of
appeal . . . renders a decision in a proceeding . . . based upon an
issue which was not proposed or briefed by any party to the
proceeding, the court shall afford the parties an opportunity to
present their views on the matter through supplemental
briefing.” But “[t]he parties need only have been given an
opportunity to brief the issue decided by the [appellate] court,
and the fact that a party does not address an issue, mode of
analysis, or authority that is raised or fairly included within the
issues raised does not implicate the protections of [Government
Code] section 68081.” (People v. Alice (2007) 41 Cal.4th 668, 679,
italics added.)
The “freestanding petitions” issue is fairly included within
the issue of the appealability of the trial court’s orders denying
appellants’ petitions. Appellants raise the appealability issue in
their briefs. In their opening briefs appellants state, “A court’s
order denying resentencing is appealable as an order made after
judgment affecting the substantial rights of appellant[s].” In
their reply briefs appellants assert: “[T]he California Department
of Corrections and Rehabilitation . . . identified [appellants] as
being eligible for resentencing within the meaning of Penal Code
[section] 1172.75(b)(l). As such, the resentencing court’s denial of
resentencing within the meaning of [section] 1172.75(c) is an
11
appealable order.” As we have previously explained (see ante, at
pp. 8-9), the CDCR’s identification of appellants did not authorize
the filing of their petitions for resentencing and therefore also did
not authorize their appeals from the orders denying their
petitions.
Appellants’ Claim of Trial Court Error Would Fail on the Merits
Appellants claim the trial court erroneously denied their
petitions for relief under section 1172.75. If we were to consider
their claim on the merits, the claim would fail because their
“current judgments,” i.e., the judgments for the offenses they
committed while in prison for the earlier 2015 and 2016
convictions, do not include a prior prison term enhancement.
Section 1172.75, subdivision (c) provides: “Upon receiving the
information described in subdivision (b) [from the Secretary of
the CDCR and the county correctional administrator], the court
shall review the judgment and verify that the current judgment
includes a sentencing enhancement described in subdivision (a)
[i.e., a section 667.5(b) prior prison term enhancement for an
offense other than a sexually violent one]. If the court
determines that the current judgment includes an enhancement
described in subdivision (a), the court shall recall the sentence
and resentence the defendant.” (Italics added; see SB 483, Stats.
2021, ch. 728, § 1 [“it is the intent of the Legislature to
retroactively apply . . . Senate Bill 136 [which amended section
667.5(b)] . . . to all persons currently serving a term of
incarceration in jail or prison for these repealed sentence
enhancements” (italics added)]; § 1172.75, subd. (b) [“The
Secretary of the [CDCR] and the county correctional
administrator of each county shall identify those persons in their
12
custody currently serving a term for a judgment that includes an
enhancement described in subdivision (a)” (italics added)].)
When appellants petitioned for relief, their “current
judgments” were the convictions for offenses they had committed
in prison while serving the sentences for the earlier 2015 and
2016 convictions. Pursuant to section 1170.1, subdivision (c)
(1170.1(c)), the prior prison term enhancements for the 2015 and
2016 convictions did not carry over to the consecutive sentences
imposed for the new in-prison offenses. Section 1170.1,
subdivision (c) provides: “In the case of any person convicted of
one or more felonies committed while the person is confined in
the state prison . . . and the law either requires the terms to be
served consecutively or the court imposes consecutive terms, the
term of imprisonment for all the convictions that the person is
required to serve consecutively shall commence from the time the
person would otherwise have been released from prison.”
“It is well settled that under section 1170.1(c), a term for an
in-prison offense or multiple in-prison offenses begins to run at
the end of the prison term imposed for the original out-of-prison
offenses. [Citations.] . . . Thus, ‘the term for an in-prison offense
does not become part of the aggregate prison term imposed for
those offenses which were committed “on the outside.” Instead,
the defendant is imprisoned for a total term consisting of the sum
of his aggregate sentence computed under section 1170.1(a) plus
the new aggregate term imposed under section 1170.1(c).
[Citation.] The latter term starts to run at the end of the prison
term imposed for the defendant's original “outside” offense.
[Citation.]’ [Citations.] [¶] Thus, [the defendant’s] consecutive
sentence for his . . . in-prison offense is not merged or aggregated
with his original term for the . . . out-of-prison offense. Instead,
13
the two terms are treated as separate terms, with the term for
the in-prison offense beginning only when [the defendant]
completes the term for his out-of-prison offense.” (In re Tate
(2006) 135 Cal.App.4th 756, 764-765; see also People v. Langston
(2004) 33 Cal.4th 1237, 1242 [“new crimes committed while in
prison are treated as separate offenses and begin a new
aggregate term”].)
Disposition
As to both B322608 (People v. Escobedo) and B323765
(People v. Chavira), the appeals are dismissed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Barry Taylor, Patricia M. Murphy, Judges
Superior Court County of Ventura
______________________________
Claudia Y. Bautista, Public Defender, Thomas Hartnett,
Snr. Deputy Public Defender, for Defendants and Appellants.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Rene Judkiewicz, Viet Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.