Opinion
A166274
11-30-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MIRON, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 17NF009738A.
TUCHER, P.J.
Anthony Miron is serving a 22-year prison term, which was imposed in 2018 following his convictions for committing lewd acts upon a child. In 2021, Miron filed a petition to recall his sentence and resentence him pursuant to Penal Code, section 1172.75, formerly section 1171.1. Section 1172.75 establishes procedures for trial courts to resentence defendants who are serving a prison term that includes an invalid sentence enhancement imposed under a former version of section 667.5, subdivision (b) (section 667.5(b)). The superior court denied Miron's resentencing petition, finding him ineligible for relief.
Statutory references are to the Penal Code. In June 2022, section 1171.1 was renumbered as section 1172.75 without substantive changes. (Stats 2022, ch. 58, § 12.) We refer to this statute by its current designation.
We shall dismiss the part of this appeal that seeks review of the order denying Miron resentencing under section 1172.75 because the trial court did not have jurisdiction to entertain that petition. (People v. Burgess (2022) 86 Cal.App.5th 375 (Burgess).) However, Miron also objected to an error in the abstract of judgment pertaining to his 2018 convictions, and we will remand this matter with directions to correct that error.
BACKGROUND
The 2018 Judgment and Miron's Current Sentence
In July 2018, a jury found Miron guilty of three counts of committing a lewd act upon an 11-year-old girl he encountered in a laundromat. (§ 288, subd. (a).) As to each count, the trial court found Miron had suffered a prior conviction for a sexual offense. (§ 1203.066, subd. (a)(5).) The court also made true findings as to several additional special allegations; Miron had a prior strike conviction (§ 1170.12, subd. (c)(1)) and two prior serious felony convictions (§ 667, subd. (a)(1)), and he had served three prior prison terms after which he had not remained free of custody for at least five years (former § 667.5(b)).
We take judicial notice of this court's decision in Miron's prior appeal, People v. Miron (Dec. 23, 2020, A155462) (nonpub. opn.), which contains a summary of the facts underlying Miron's 2018 convictions. (Evid. Code, § 452, subd. (d) [court may take judicial notice of documents in court file].)
Miron was sentenced on September 14, 2018. At that hearing, the trial court denied Miron's motion to strike his prior strike conviction. In determining the appropriate sentence for Miron's offenses, the court took account of Miron's age and health issues, but expressed the intent to impose a long sentence based on its observations that Miron was a predator and showed no genuine remorse for his actions. Accordingly, the court calculated a principal term sentence of 22 years in prison, consisting of a middle term of six years, doubled under the Three Strikes Law (§ 1170.12, subd. (c)(1)), plus five years each for two prior serious felony convictions (§ 667, subd. (a)(1)). The court struck the prior prison term sentence enhancement findings, without imposing any additional prison time, stating "[t]he Court is going to strike the allegations pursuant to 667.5(b), all three of them." Concurrent terms were imposed for Miron's other section 288 convictions, resulting in an aggregate sentence of 22 years in prison.
Legislative Changes to Sentence Enhancements For Some Prison Term Priors
In 2020, the Legislature amended section 667.5(b). (Stats. 2019, ch. 590, § 1; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Prior to January 1, 2020, former section 667.5(b) required trial courts to impose a one-year sentence enhancement upon finding that the defendant had served a prior prison term and not remained free of custody for at least five years. (Former § 667.5(b).) As amended, section 667.5(b) now provides that a prior prison term sentence enhancement applies only to prior terms for sexually violent offenses. (See Jennings, at p. 681.)
In 2021, the Legislature enacted Senate Bill No. 483, which added a new Penal Code provision, now designated as section 1172.75, in order to make its 2020 amendment to section 667.5(b) retroactive. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12; Burgess, supra, 86 Cal.App.5th at pp. 380-381.) The first three subdivisions of section 1172.75 are relevant to our disposition of the present appeal.
Section 1172.75, subdivision (a) provides that any sentence enhancement "that was imposed" pursuant to former section 667.5(b) is "legally invalid" unless the prior prison term was served for a sexually violent offense. Subdivision (b) establishes a mechanism for the California Department of Corrections and Rehabilitation (CDCR) to identify individuals who are currently serving a prison term for a judgment that includes an invalid section 667.5(b) enhancement and to provide information about such an individual to "the sentencing court that imposed the enhancement." And subdivision (c) provides that after the CDCR notifies the trial court about an individual described in subdivision (b), the court shall review the current judgment pertaining to that individual and if judgment includes an enhancement described in subdivision (a), the court shall "recall the sentence and resentence the defendant."
Miron's Petition for Resentencing
On November 30, 2021, Miron filed a motion for resentencing. Representing himself, Miron alleged that Senate Bill 483 authorizes him to seek a recall of his sentence because sentence enhancements imposed on him pursuant to former section 667.5(b) are invalid under section 1172.75.
Although Miron's motion cited section 1170.1, the parties and court treated the motion as one brought under former section 1171.1, now section 1172.75.
In August 2022, the People filed opposition to Miron's resentencing petition. They argued that the statutory relief afforded by section 1172.75 is limited to cases in which an enhancement was actually "imposed" under former section 667.5(b), and no such enhancement was imposed on Miron because the section 667.5(b) allegations were stricken by the trial court at sentencing.
With the assistance of appointed counsel, Miron filed a response to the People's opposition brief. Miron argued that he is eligible for resentencing because the current judgment includes invalid prison prior findings that were made under former section 667.5(b) and are recorded on the abstract of judgment. The fact that the sentencing court did not impose punishment for these findings is not dispositive, Miron argued, because the abstract of judgment shows that "the sentencing court only struck the punishment and not the entire enhancement." Accordingly, Miron argued, section 1172.75 required the court to recall Miron's sentence, "dismiss the legally invalid prison prior[s], and then resentence the defendant."
On September 21, 2022, the superior court held a hearing on Miron's resentencing petition. The People argued section 1172.75 establishes a two-part process, and the first step requires a "qualifying prior" conviction. Miron's 2018 convictions are not qualifying priors, the People argued, because enhancements were not imposed on him pursuant to former section 667.5(b). Miron's counsel responded that something has to be done about the fact that three "invalid 667.5(b) priors" appear on the abstract of judgment for his 2018 offenses. Miron argued that section 1172.75, subdivision (c) provided a means for the court to correct the abstract of judgment by recalling Miron's sentence and affording him a full resentencing hearing.
After the matter was submitted, the trial court denied Miron's petition. The court reasoned that the plain language of section 1172.75 limits resentencing relief to cases in which an enhancement was imposed pursuant to former section 667.5(b), and the current judgment against Miron does not meet that threshold requirement. Miron filed a timely notice of appeal from the superior court's ruling.
DISCUSSION
I. The Appeal From the Order Denying Miron's Request For Resentencing Must Be Dismissed
Before Miron filed his opening brief in the present appeal, a different panel of this division issued a decision in Burgess, supra, 86 Cal.App.5th 375, which involved an appeal from an order denying a defendant's petition for resentencing under section 1172.75. In that case, the superior court denied the defendant's petition on the ground that section 1172.75 does not allow a petitioner to seek resentencing relief on his or her own motion. (Burgess, at p. 379.) On appeal, this court held that we lacked jurisdiction to review the order denying the Burgess defendant relief under section 1172.75. (Id. at pp. 381-382.)
As explained more fully in Burgess, once a criminal judgment becomes final, courts no longer have jurisdiction to vacate or modify a sentence absent an exception to the jurisdictional bar. (Burgess, supra, 86 Cal.App.5th at p. 381; see also People v. King (2022) 77 Cal.App.5th 629.) And, although such an exception can be established by statute, "section 1172.75 simply does not contemplate resentencing relief initiated by any individual defendant's petition or motion." (Burgess, at pp. 382 &384.) Accordingly, the Burgess trial court did not have jurisdiction to entertain the defendant's resentencing petition and this court did not have jurisdiction over the defendant's appeal from the motion's denial. (Id. at p. 382.)
We follow Burgess here by dismissing the core part of Miron's appeal, which seeks review of an order denying him resentencing relief. As discussed in our background summary, Miron sought to have his sentence recalled and a new sentencing hearing pursuant to section 1172.75, a statute that does not authorize an individual defendant to seek such relief. For reasons outlined in Burgess, the trial court should not have entertained Miron's petition, and this court lacks jurisdiction to review the order denying that petition.
Miron contends that Burgess was wrongly decided, offering three unconvincing arguments. First, he points out that section 1172.75 does not expressly preclude a defendant from filing his or her own petition for resentencing. We addressed this fact in Burgess, explaining that although "there is no express prohibition against a defendant from seeking relief on his or her own, . . . the 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," and "[u]nder this express procedure, any review and verification by the 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." (Burgess, supra, 86 Cal.App.5th at p. 384.)
Second, Miron contends that following Burgess would effectively give CDCR sole authority to decide whether a judgment includes a legally invalid section 667.5(b) sentence enhancement. Miron's dissatisfaction with the type of relief afforded by section 1172.75 is beside the point. Our holding in Burgess is based on a straightforward application of the rule that courts do not have jurisdiction to vacate or modify a sentence once a judgment is rendered and execution of the sentence has begun. (Burgess, supra, 86 Cal.App.5th at pp. 381-382.) Section 667.5(b) establishes an exception to this jurisdictional rule, but not for motions or petitions filed by an individual defendant.
Third, Miron contends that Burgess is distinguishable on its facts because the Burgess defendant's petition was premature. As we discussed in Burgess, section 1172.75 establishes staggered timelines for CDCR to identify and courts to resentence two categories of defendants who are currently serving sentences that include an invalid section 667.5(b) enhancement, in order to give priority consideration to defendants who had already served their base term and other valid sentencing enhancements. (Burgess, supra, 86 Cal.App.5th at pp. 382-383.) "The statute allows courts to complete resentencing for the priority group by October 1, 2022, and for all other eligible persons by December 31, 2023." (Id. at p. 382.) Because the Burgess defendant was not eligible for priority in recall and resentencing, this court found that even if we were to consider the merits of his petition, it was premature and would have failed on that ground. (Burgess, at p. 383.)
If Miron is suggesting his resentencing petition should be deemed valid because it was not filed prematurely, we disagree. The record shows that Miron has not already served his base term and other valid sentence enhancements, and thus he would not be eligible for priority consideration even if he otherwise qualified for some relief under section 1172.75. Under the reasoning of Burgess, Miron's end run around CDCR's identification procedures takes time and resources from the court that would otherwise be available to achieve compliance within the timelines set forth in section 1172.75. Beyond that, and unlike in Burgess, the superior court found that no invalid section 667.5(b) enhancement was imposed on Miron. (Cf. Burgess, supra, 86 Cal.App.5th at p. 382.) Were we to review this finding, it would be affirmed based on the record of Miron's sentencing, which shows unequivocally that no sentencing enhancement was imposed on Miron pursuant to former section 667.5(b).
Miron argues that an enhancement does not actually have to enhance the defendant's sentence for it to be deemed invalid because subdivision (c) of section 1172.75 mandates that the court recall a defendant's sentence whenever "the current judgment includes a sentencing enhancement described in subdivision (a)." This argument ignores settled rules of statutory construction requiring courts to construe statutory language in the context of the statute as a whole and the statutory framework. (People v. Rizo (2000) 22 Cal.4th 681, 685.) The trial court's obligations under subdivision (c) are triggered by and dependent on circumstances set forth in subdivisions (a) and (b) of section 1172.75. Taken together, these subdivisions establish a process for courts to provide resentencing relief when a defendant is currently serving a sentence that includes an invalid enhancement that was imposed pursuant to section 667.5(b). When referring to a sentence enhancement, the word "imposed" can mean imposed and executed or imposed and stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1125.) Appellate courts have cited Gonzalez when finding that section 1172.75 applies to a section 667(b) enhancement that was imposed and then stayed. (People v. Renteria (Oct. 18, 2023, H049989) Cal.App.5th, [2023 Cal.App. Lexis 862, *8]; People v. Christianson (Nov. 17, 2023, D081330) Cal.App.5th_, - [2023 Cal.App. Lexis 888, *17-*18]; but see People v. Rhodius (Nov. 13, 2023, E080064) Cal.App.5th, [2023 Cal.App. Lexis 865, *8] [interpreting" 'imposed'" in section 1172.75(a) as" 'imposed and executed' "].) However, in Miron's case the section 667.5(b) enhancements were all stricken, thus removing any doubt that no invalid section 667.5(b) enhancement was imposed on Miron. (Cf. Christianson, at pp. *20-*21 [since section 667.5(b) enhancements were imposed and stayed by the original sentencing court, full resentencing was required regardless of whether the court had improperly stayed the enhancements].)
In any event, the dispositive issue is not whether Miron qualifies for resentencing under section 1172.75, but whether this statute confers jurisdiction on the superior court to entertain a petition or motion that is filed by the defendant. Under Burgess, the answer to this question is no. (Burgess, supra, 86 Cal.App.5th at p. 384; see People v. Newell (2023) 93 Cal.App.5th 265 [following Burgess and dismissing appeal from denial of defendant's petition for resentencing based on Senate Bill 483]; People v. Escobedo (2023) 95 Cal.App.5th 440 [same], petn. for review pending, petn. filed Oct. 23, 2023; see also People v. Cota (Nov. 17, 2023, F085451) Cal.App.5th, [2023 Cal.App. Lexis 890, *17] ["section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition"].) Because we stand by our decision in Burgess, Miron's appeal from the order denying his section 1172.75 petition will be dismissed. We note, with the court in Escobedo, that the law provides other means for addressing an unlawful sentence where section 1172.75 does not confer jurisdiction. (Escobedo, at p. 449.)
II. Clerical Errors In the Abstract of Judgment Must Be Corrected
As we have discussed, the transcript of Miron's 2018 sentencing hearing shows unequivocally that the trial court struck the three section 667.5(b) enhancements without qualification. However, this fact is not reflected in the abstract of judgment. We note that the form used to record the abstract of judgment includes an instruction not to list enhancements fully stricken by the court. Instead, in this case the superior court clerk who completed the abstract of judgment form listed one section 667.5(b) enhancement and used the coded term "PS" to indicate that punishment for the enhancement was stricken.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Moreover, the reference to section 667.5(b) in the amended abstract of judgment was a clerical error, as there were three section 667.5(b) enhancements, not one, and all of them were fully stricken by the trial court at the sentencing hearing. "Courts may correct clerical errors at any time." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) And, since Miron brought this error to the attention of the superior court, we have jurisdiction to order correction of the amended abstract of judgment, which does not accurately reflect the oral judgment of the sentencing court. (Ibid.)
DISPOSITION
Miron's appeal from the order denying his petition for resentencing is dismissed. The superior court is directed to prepare an amended abstract of judgment that does not list any sentence enhancement under Penal Code section 667.5, subdivision (b). A certified copy of the corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: PETROU, J., RODRÍGUEZ, J.