Opinion
F081413
06-09-2021
THE PEOPLE, Plaintiff and Respondent, v. DARREN LEWIS, Defendant and Appellant.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF150498A. David R. Zulfa, Judge.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Defendant Darren Lewis appeals from the trial court's denial of his petition to modify his sentence, which requested dismissal of a firearm enhancement (Pen. Code, § 12022.5, subd. (a)) pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620). As we explain, defendant's judgment of conviction was already final when he filed the petition. The trial court therefore lacked jurisdiction over the petition, and the resulting order is not appealable. Accordingly, we grant the People's motion to dismiss the appeal.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
In 2012, defendant fatally shot his half brother. (See People v. Lewis (F068874, June 26, 2015) [nonpub. opn.] (Lewis).)
We grant defendant's request to take judicial notice of our prior opinion in his direct appeal and the proceedings on his petitions for writ of habeas corpus, filed in the Kern County Superior Court under cases Nos. HC015089A, HC015285A, and HC015883A, in which request the People join. (Evid. Code, §§ 452, subd. (a), 459, subd. (a).)
In 2013, defendant pled no contest to voluntary manslaughter (§ 192, subd. (a)), with the allegation that he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). His subsequent motion to withdraw his plea was denied and he was sentenced to the agreed-upon term of 21 years in state prison, consisting of an 11-year term for the offense of voluntary manslaughter and a 10-year term for the firearm enhancement. On June 26, 2015, this court affirmed the judgment. (See Lewis, supra, F068874.) The remittitur issued on August 26, 2015.
Thereafter, defendant brought three separate petitions for writs of habeas corpus in the Kern County Superior Court, all on grounds unrelated to the instant appeal. All three petitions were denied.
On June 16, 2020, defendant filed in the trial court a petition to modify his sentence and dismiss the firearm enhancement based on Senate Bill No. 620. The trial court denied the petition on the ground defendant was ineligible for resentencing.
This appeal followed. After defendant filed his opening brief, the People filed a motion to dismiss the appeal on the ground the trial court's order was not appealable. We stayed further briefing on the appeal pending ruling on the People's motion. Defendant timely filed an opposition and the motion now stands ready for disposition.
DISCUSSION
“ ‘ “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.”' ” (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) Section 1237, subdivision (b) permits a defendant to appeal “[f]rom any order made after judgment, affecting the substantial rights of the party.”
Here, the People contend the trial court lacked jurisdiction to grant defendant's motion to dismiss the firearm enhancement. Therefore, the People argue, denial of the motion did not affect defendant's substantial rights. We agree.
“Effective January 1, 2018, Senate Bill No. 620... gave trial courts previously unavailable discretion to strike or dismiss firearm enhancements otherwise required to be imposed by Penal Code sections 12022.5 and 12022.53. (§ 12022.5, subd. (c), as amended by Stats. 2017, ch. 682, § 1; § 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) There is no dispute that these statutory amendments apply retroactively to cases in which the judgment was not yet final when Senate Bill No. 620 went into effect.” (People v. Baltazar (2020) 57 Cal.App.5th 334, 337, fn. omitted (Baltazar).) “The only reasonable interpretation [of Senate Bill No. 620] is that the authority to strike or dismiss a firearm enhancement applies only to nonfinal judgments or to final judgments where the defendant is being resentenced under some other law.” (Id. at p. 341.)
Defendant does not disagree that his conviction became final in 2015, long before Senate Bill No. 620 went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Senate Bill No. 620 therefore does not apply to him, and the trial court lacked jurisdiction to modify his sentence. (Baltazar, supra, 57 Cal.App.5th at p. 342.)
Nevertheless, defendant claims (1) Senate Bill No. 620 was intended by the Legislature to be “fully retroactive, ” regardless of the finality of the underlying judgment, and (2) application of Senate Bill No. 620 to final judgments is required under both the federal and state equal protection guarantees. This court has already rejected both arguments. (Baltazar, supra, 57 Cal.App.5th at pp. 340-341.) Other appellate courts are in accord. (People v. Humphrey (2020) 44 Cal.App.5th 371, 380; People v. Hernandez (2019) 34 Cal.App.5th 323, 327; People v. Johnson (2019) 32 Cal.App.5th 938, 941; People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.)
Defendant presents no compelling argument that would persuade us to depart from our analysis and conclusion in Baltazar, supra, 57 Cal.App.5th 334. He argues only that the appeals in Baltazar; People v. Hernandez, supra, 34 Cal.App.5th 323; People v. Johnson, supra, 32 Cal.App.5th 938;and People v. Fuimaono, supra, 32 Cal.App.5th 132were not dismissed until all briefing was completed. Here, the appealability of the court's underlying order has been fully briefed. Additional briefing on the merits would not affect our determination that the order is not appealable.
DISPOSITION
The People's May 6, 2021 “Motion to Dismiss the Appeal” (boldface & some capitalization omitted) is granted, and the appeal is dismissed. [*] Before Detjen, Acting P.J., Franson, J. and Smith, J.