Opinion
H048340
02-03-2021
THE PEOPLE, Plaintiff and Respondent, v. RICARDO PADILLA FITZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC753856)
Appellant Ricardo Padilla Fitz appeals from an order denying his postjudgment motion which had asked the trial court to "grant a remand" so "the court can exercise its newly-granted discretion" to strike or dismiss a firearm enhancement under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.). Fitz's appellate counsel filed a brief under People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano) and People v. Wende (1979) 25 Cal.3d 436 (Wende). Fitz filed a supplemental brief. For the reasons explained below, we conclude that Fitz has appealed a nonappealable order and thus dismiss this appeal.
I. BACKGROUND
On December 10, 2007, Fitz pleaded no contest to one count of carjacking, 11 counts of robbery, and one count each of false imprisonment, carrying a loaded firearm, second degree burglary (Pen. Code, §§ 215, 211, 236, 237, former § 12031, subd. (a) [now § 25850], § 459, 460, subd. (b) ), being under the influence of and possessing methamphetamine while armed with a firearm (Health & Saf. Code, §§ 11550, subd. (e), 11370.1), and possession of a short-barreled shotgun (former § 12020, subd. (a)(1) [now § 33215]). As to a number of these counts, Fitz admitted gang enhancements, personal use of a handgun or that a principal personally used a firearm, and/or personal use of a deadly or dangerous weapon (§§ 186.22, subd. (b), 12022.53, subd. (b), 12022.53, subds. (b), (e)(1), 12022, subd. (b)(1)). On February 29, 2008, the trial court sentenced Fitz to a determinate term of 32 years, four months in state prison. The sentence included 20 years for the firearm-use enhancements under section 12022.53, attendant to four of Fitz's robbery convictions. No appeal was perfected or prosecuted from the original judgment.
Unspecified statutory references are to the Penal Code.
We take this background information regarding the original judgment from the current record on appeal and an unpublished opinion that we issued in a prior appeal Fitz took from a postjudgment order denying his petition for recall of sentence under Proposition 36 (the Three Strikes Reform Act of 2012) and section 1170.126. On our own motion, we take judicial notice of our unpublished opinion, People v. Fitz (Dec. 10, 2013, H039535) [nonpub. opn.]. (See Evid. Code, §§ 452, subd. (d), 459.)
On July 1, 2020, Fitz, citing section 12022.53, subdivision (h) (hereafter section 12022.53(h)), moved in propria persona for a "remand of his case" to permit the trial court to "exercise its newly-granted discretion" and consider whether to strike or dismiss a firearm enhancement (hereafter motion). Fitz stated that, at the time of his sentencing in 2008, the trial court was not allowed to strike or dismiss a section 12022.53 firearm enhancement. (See former § 12022.53, subd. (h).) In addition, Fitz asked the trial court to consider his rehabilitation "[a]s part of th[e] court's review."
We note that in his motion, Fitz only mentioned a single firearm enhancement of "10 years" imposed on him pursuant to section 12022.53, subdivision (b). He did not mention the three, consecutive three-year-and-four-month firearm enhancements that also were imposed at his sentencing. Nevertheless, Fitz attached to his motion a copy of the abstract of judgment that listed the three additional firearm enhancements.
On July 20, 2020, the trial court issued a written order denying Fitz's motion. The court stated that Senate Bill No. 620 applies retroactively only to cases that are not yet final on direct appeal and, because Fitz was sentenced in 2008 and did not appeal the judgment, he failed to show his case was not yet final.
Fitz filed a timely notice of appeal from the trial court's order, and this court appointed counsel to represent him. In the notice of appeal, Fitz stated that his appeal "is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." Subsequently, counsel with the Sixth District Appellate Program filed in the trial court a timely amended notice of appeal stating that the appeal follows an "[o]rder after judgment denying motion for resentencing."
In this court, Fitz's appointed appellate counsel filed a brief pursuant to Serrano and Wende. The brief raises no arguable issues on appeal but asks this court to conduct an independent review of the record on appeal. In addition, regarding appealability, Fitz claims that "this matter is appealable as an 'order made after judgment affecting the substantial rights of the party' " under section 1237, subdivision (b). Relying on Teal v. Superior Court (2014) 60 Cal.4th 595 (Teal), Fitz maintains several California Courts of Appeal have wrongly concluded that the trial court has no jurisdiction to grant postjudgment relief under section 12022.53(h) in cases like this one, which in turn results in an erroneous conclusion that any order denying such requested relief is nonappealable under section 1237, subdivision (b), and an appeal therefrom subject to dismissal.
In Teal, the California Supreme Court concluded that the trial court's denial of a petition for recall under section 1170.126 (enacted by Proposition 36) is an appealable order under section 1237, subdivision (b). (Teal, supra, 60 Cal.4th at pp. 596-597, 600-601.)
After appellate counsel filed the Serrano/Wende brief, we notified Fitz that he could submit a supplemental brief on his own behalf within 30 days. Fitz timely filed a supplemental brief. In it, Fitz contends the trial court's denial of his motion violated his federal and state constitutional rights to equal protection. Fitz asserts that he is similarly situated to persons whose cases are not yet final and who benefit from the discretion now accorded the trial court under section 12022.53(h). Fitz argues further that there is no rational basis to deny persons like him the benefit of the change in law affected by Senate Bill No. 620. He requests that we remand this case to the trial court for it to consider whether to strike the firearm enhancements.
II. DISCUSSION
Under California law, a defendant is entitled to an appeal as of right from his or her judgment of conviction (§ 1237, subd. (a); People v. Kelly (2006) 40 Cal.4th 106, 117) and has the constitutional right to the assistance of counsel in that appeal (Douglas v. California (1963) 372 U.S. 353, 355). Thus, when counsel in a first appeal of right notifies the court that there are no arguable issues, the court must conduct an independent review of the record to protect the defendant's right to counsel. (Kelly, at p. 119; see also Wende, supra, 25 Cal.3d at p. 441; Serrano, supra, 211 Cal.App.4th at p. 500.) However, "[b]oth the United States Supreme Court and the California Supreme Court have concluded that due process does not require [independent] review [of the record] other than in the first appeal of right." (Serrano, at p. 500; People v. Cole (2020) 52 Cal.App.5th 1023, 1039 (Cole), review granted Oct. 14, 2020, S264278.)
Recently, our colleagues in Division Three of the Fourth District Court of Appeal held "that when an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice." (People v. Flores (2020) 54 Cal.App.5th 266, 269; see People v. Gallo (2020) 57 Cal.App.5th 594, 598-599 [agreeing with Flores]; see also People v. Allison (2020) 55 Cal.App.5th 449, 456; but see People v. Scott (2020) 58 Cal.App.5th 1127, 1135 [disagreeing with Flores] (Scott).) Irrespective of whether a Court of Appeal should conduct an independent review of the record in an appeal relating to section 1170.95, we are not persuaded by Fitz's argument that we can and should independently review the record in this case. As we explain below, the postjudgment order from which Fitz appeals is not an appealable order. Hence, we lack jurisdiction to hear this appeal and cannot conduct an independent review of the record for trial court error. (See In re Mario C. (2004) 124 Cal.App.4th 1303, 1309.) Nevertheless, we will address the specific contentions Fitz and his appointed counsel raise in their briefs regarding appealability and equal protection. (See Cole, supra, 52 Cal.App.5th at p. 1040, review granted.)
"Section 1170.95 permits a defendant convicted of murder to file a petition to have the murder conviction vacated and be resentenced. [Citation.] It applies only to defendants convicted under a felony murder or natural and probable consequences theory. [Citation.] To obtain relief, a defendant must show that he or she could not be convicted today 'because of' Senate Bill [No.] 1437's changes to the murder laws." (Scott, supra, 58 Cal.App.5th at p. 1130.)
Beginning with the threshold issues of trial court jurisdiction and appealability, we reject Fitz's argument that the opinions of our sister Courts of Appeal should be eschewed because they "mistake the merits of the claim with whether it is appealable." "Generally, 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.] If the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed." (People v. Torres (2020) 44 Cal.App.5th 1081, 1084.) There are some exceptions to this general rule (see id. at p. 1085; see also People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1208), but none applies here because "Senate Bill No. 620 [] does not contain language authorizing resentencing of convictions after they became final." (People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 (Fuimaono); see People v. Hernandez (2019) 34 Cal.App.5th 323, 326.) In the same vein, Fitz's reliance on Teal is unavailing. Teal involved a different statutory provision (§ 1170.126), which, unlike section 12022.53(h), establishes a postjudgment procedure for defendants to petition for recall of sentence and, thus, "creates a substantial right to be resentenced and provides a remedy by way of a statutory postjudgment motion." (Teal, supra, 60 Cal.4th at p. 600; see Fuimaono, at p. 135.)
Fitz's 2008 judgment became final long before the January 1, 2018 effective date of Senate Bill No. 620. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [finality]; People v. McDaniels (2018) 22 Cal.App.5th 420, 424 [effective date].) The trial court's newly granted discretion to strike or dismiss a firearm enhancement under section 12022.53(h) "applies only to nonfinal judgments or to final judgments where the defendant is being resentenced under some other law." (People v. Baltazar (2020) 57 Cal.App.5th 334, 341 (Baltazar).) Fitz's "case presents neither situation. ' "[I]f the Legislature wanted to provide a specific procedure via petition or motion to reopen final cases for resentencing, it could have done so. [Citations.] It did not." ' " (Ibid.) "[A]bsent any new authority to resentence [Fitz] under Senate Bill No. 620, the trial court lacked jurisdiction to grant [Fitz's] resentencing request. [Citation.] Because the trial court lacked jurisdiction to modify [Fitz's] sentence, denial of his motion to modify his sentence could not have affected his substantial rights." (Fuimaono, supra, 32 Cal.App.5th at p. 135; see also People v. Johnson (2019) 32 Cal.App.5th 938, 941.)
Section 12022.53(h) provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Our conclusion regarding the lack of jurisdiction and appealability is not altered by Fitz's contention that the denial of his motion violated his constitutional rights to equal protection. " 'The right to equal protection of the law generally does not prevent the state from setting a starting point for a change in the law. "[T]he Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time." [Citation.] The same rule applies to changes in sentencing law that benefit defendants.' " (Baltazar, supra, 57 Cal.App.5th at p. 341.) Fitz does not have a "vested interest ' "in a specific term of imprisonment" ' " and, thus, "equal protection of the law is denied only where there is no 'rational relationship between the disparity of treatment and some legitimate governmental purpose.' " (People v. Turnage (2012) 55 Cal.4th 62, 74.)
We note that Fitz did not raise his equal protection argument in the trial court. Nevertheless, we will assume arguendo that Fitz's argument is not forfeited. (See In re Sheena K. (2007) 40 Cal.4th 875, 887-889; People v. Williams (1999) 77 Cal.App.4th 436, 460 ["acknowledge[ing] that that the objection/waiver rule is generally not applied when the alleged error involves a pure question of law, which can be resolved on appeal without reference to a record developed below"].) --------
"Purposes of Senate Bill No. 620 include providing relief to deserving defendants and lowering the prison population. [Citation.] Because the Legislature could have rationally concluded it could sufficiently achieve these purposes, without unduly overburdening court and related resources, by limiting the applicability of Senate Bill No. 620 to nonfinal judgments and to final judgments where the defendant was already returning to a lower court for resentencing under some other law, the law does not violate equal protection." (Baltazar, supra, 57 Cal.App.5th at p. 342.) Accordingly, Fitz has failed to present a ground demonstrating that the trial court had jurisdiction to grant him relief.
For these reasons, we conclude the trial court's postjudgment order denying Fitz's motion under section 12022.53(h) is not appealable, and we must therefore dismiss Fitz's appeal. (See Baltazar, supra, 57 Cal.App.5th at p. 342.)
III. DISPOSITION
The appeal is dismissed.
/s/_________
Danner, J.
WE CONCUR:
/s/_________
Greenwood, P.J.
/s/_________
Grover, J.