Filed 3/9/23 P. v. Alvarado CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080158
v. (Super.Ct.No. FSB1205411)
FELIPE EPIFANIO ALVARADO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell IV, Judge. Affirmed.
Felipe Epifanio Alvarado, in pro. per., and Robert L. Hernandez, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 Defendant and appellant, Felipe Epifanio Alvarado, filed a motion for
modification of his sentence (Pen. Code, § 1170, subd. (d)),1 which the court denied.
After defendant filed a notice of appeal, this court appointed counsel to represent
defendant.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of facts, a
statement of the case, and identifying two potentially arguable issues: (1) whether the
court erred in denying defendant’s motion; and (2) whether the court’s denial of
defendant’s motion is appealable.
Defendant was offered the opportunity to file a personal supplemental brief, which
he has done. Defendant contends the trial court erred in admitting evidence of
defendant’s 2002 prior conviction, his trial counsel rendered prejudicial ineffective
assistance of counsel, insufficient evidence supported the jury’s true finding on the gang
enhancement allegation, the court prejudicially failed to instruct the jury with
CALCRIM No. 225, and defendant was deprived of due process by the trial court’s
failure to provide a fair trial due to the aforementioned errors. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
1 All further statutory references are to the Penal Code unless otherwise indicated. 2 We take judicial notice of the opinion in People v. Alvarado (Oct. 21, 2015, E061217) [nonpub. opn.] (Alvarado), from defendant’s appeal from the judgment, which defendant cites and quotes at length in his supplemental brief. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).)
2 “Defendant . . . , a West Side Verdugo gang member, attacked a handyman in a
convenience store, flashed his gang tattoos, and then robbed the cashier at knifepoint. A
jury convicted defendant of second degree robbery and assault by means likely to
produce great bodily injury (Pen. Code, §§ 211, 245, subd. (a)(4)), as charged in counts 1
and 2, and found true the allegations that both offenses were gang-related and the robbery
involved personal use of a deadly or dangerous weapon. (§§ 186.22, subd. (b)(1), 12022,
subd. (b)(1).)” (Alvarado, supra, E061217, fn. omitted.)
After a bifurcated proceeding on April 21, 2014, the court found defendant had
suffered a prior strike conviction (§§ 667, subds. (a)-(i), 1170.12, subd. (a)) and a prior
serious felony conviction (§ 667, subd. (a)(1)). “The court denied a motion to strike the
prior conviction allegation and sentenced defendant to the upper term of five years,
doubled to 10 years based on the strike prior, for the robbery conviction in count 1. The
court enhanced that sentence by a consecutive term of 10 years for the gang finding plus
one year for the weapon use finding, for a total term of 21 years for count 1. The court
then imposed a consecutive term of one year, doubled to two, for the assault conviction in
count 2, plus one additional year for the gang finding, for a term of three years overall for
that count. The court then added a five-year term for the prior serious felony, for an
aggregate term of 29 years.” (Alvarado, supra, E061217.)
On appeal, defendant contended the court erred in allowing evidence of his 2002
conviction for assault with a firearm as a gang predicate, that there was ineffective
assistance of counsel concerning the gang expert’s testimony about defendant’s state of
mind, that insufficient evidence supported the gang enhancement, that the court erred in
3 failing to sua sponte instruct the jury with CALCRIM No. 225, and that there was
prejudicial cumulative error. By opinion filed October 21, 2015, this court rejected
defendant’s claims of error and affirmed the judgment. (Alvarado, supra, E061217.)
On August 9, 2022, defendant filed a motion for modification of his sentence
pursuant to section 1170. Defendant contended the trial court erred in admitting evidence
of defendant’s 2002 prior conviction, his trial counsel rendered prejudicial ineffective
assistance of counsel, insufficient evidence supported the jury’s true finding on the gang
enhancement allegation, the court prejudicially failed to instruct the jury with
CALCRIM No. 225, and defendant was deprived of due process by the trial court’s
failure to provide a fair trial due to the aforementioned errors.
The court indicated it had reviewed defendant’s motion. Without appointing
counsel or holding a hearing, the court denied defendant’s motion.
II. DISCUSSION
Defendant contends the trial court erred in admitting evidence of defendant’s 2002
prior conviction, his trial counsel rendered prejudicial ineffective assistance of counsel,
insufficient evidence supported the jury’s true finding on the gang enhancement
allegation, the court prejudicially failed to instruct the jury with CALCRIM No. 225, and
defendant was deprived of due process by the trial court’s failure to provide a fair trial
due to the aforementioned errors. We affirm.
First, the court was without jurisdiction to grant defendant’s motion. “‘[O]nce a
judgment is rendered, except for limited statutory exceptions [citations], the sentencing
court is without jurisdiction to vacate or modify the sentence, except pursuant to the
4 provisions of section 1170, subdivision (d). [Citation.] Section 1170, subdivision (d),
allows a sentencing court on its own motion to recall and resentence, subject to the
express limitation that the court must act to recall the sentence within 120 days after
committing the defendant to prison. [Citation.] Indeed, “the court loses ‘own-motion’
jurisdiction if it fails to recall a sentence within 120 days of the original commitment.”’”
(People v. Hernandez (2019) 34 Cal.App.5th 323, 326.)
The trial court rendered defendant’s judgment on May 19, 2014. Since
defendant’s judgment was final on January 19, 2016, when this court issued the remittitur
in Alvarado, supra, E061217, the trial court lacked jurisdiction to grant the relief
defendant requested. (People v. Hernandez, supra, 34 Cal.App.5th at pp. 325-326.)
Second, defendant is estopped from raising the same issues raised and rejected in
his appeal from the judgment. “[A]ppellate court judgments establish the law that ‘“must
be applied in the subsequent stages of the cause”’—i.e., the law of the case—‘“and they
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Filed 3/9/23 P. v. Alvarado CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080158
v. (Super.Ct.No. FSB1205411)
FELIPE EPIFANIO ALVARADO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell IV, Judge. Affirmed.
Felipe Epifanio Alvarado, in pro. per., and Robert L. Hernandez, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 Defendant and appellant, Felipe Epifanio Alvarado, filed a motion for
modification of his sentence (Pen. Code, § 1170, subd. (d)),1 which the court denied.
After defendant filed a notice of appeal, this court appointed counsel to represent
defendant.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of facts, a
statement of the case, and identifying two potentially arguable issues: (1) whether the
court erred in denying defendant’s motion; and (2) whether the court’s denial of
defendant’s motion is appealable.
Defendant was offered the opportunity to file a personal supplemental brief, which
he has done. Defendant contends the trial court erred in admitting evidence of
defendant’s 2002 prior conviction, his trial counsel rendered prejudicial ineffective
assistance of counsel, insufficient evidence supported the jury’s true finding on the gang
enhancement allegation, the court prejudicially failed to instruct the jury with
CALCRIM No. 225, and defendant was deprived of due process by the trial court’s
failure to provide a fair trial due to the aforementioned errors. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
1 All further statutory references are to the Penal Code unless otherwise indicated. 2 We take judicial notice of the opinion in People v. Alvarado (Oct. 21, 2015, E061217) [nonpub. opn.] (Alvarado), from defendant’s appeal from the judgment, which defendant cites and quotes at length in his supplemental brief. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).)
2 “Defendant . . . , a West Side Verdugo gang member, attacked a handyman in a
convenience store, flashed his gang tattoos, and then robbed the cashier at knifepoint. A
jury convicted defendant of second degree robbery and assault by means likely to
produce great bodily injury (Pen. Code, §§ 211, 245, subd. (a)(4)), as charged in counts 1
and 2, and found true the allegations that both offenses were gang-related and the robbery
involved personal use of a deadly or dangerous weapon. (§§ 186.22, subd. (b)(1), 12022,
subd. (b)(1).)” (Alvarado, supra, E061217, fn. omitted.)
After a bifurcated proceeding on April 21, 2014, the court found defendant had
suffered a prior strike conviction (§§ 667, subds. (a)-(i), 1170.12, subd. (a)) and a prior
serious felony conviction (§ 667, subd. (a)(1)). “The court denied a motion to strike the
prior conviction allegation and sentenced defendant to the upper term of five years,
doubled to 10 years based on the strike prior, for the robbery conviction in count 1. The
court enhanced that sentence by a consecutive term of 10 years for the gang finding plus
one year for the weapon use finding, for a total term of 21 years for count 1. The court
then imposed a consecutive term of one year, doubled to two, for the assault conviction in
count 2, plus one additional year for the gang finding, for a term of three years overall for
that count. The court then added a five-year term for the prior serious felony, for an
aggregate term of 29 years.” (Alvarado, supra, E061217.)
On appeal, defendant contended the court erred in allowing evidence of his 2002
conviction for assault with a firearm as a gang predicate, that there was ineffective
assistance of counsel concerning the gang expert’s testimony about defendant’s state of
mind, that insufficient evidence supported the gang enhancement, that the court erred in
3 failing to sua sponte instruct the jury with CALCRIM No. 225, and that there was
prejudicial cumulative error. By opinion filed October 21, 2015, this court rejected
defendant’s claims of error and affirmed the judgment. (Alvarado, supra, E061217.)
On August 9, 2022, defendant filed a motion for modification of his sentence
pursuant to section 1170. Defendant contended the trial court erred in admitting evidence
of defendant’s 2002 prior conviction, his trial counsel rendered prejudicial ineffective
assistance of counsel, insufficient evidence supported the jury’s true finding on the gang
enhancement allegation, the court prejudicially failed to instruct the jury with
CALCRIM No. 225, and defendant was deprived of due process by the trial court’s
failure to provide a fair trial due to the aforementioned errors.
The court indicated it had reviewed defendant’s motion. Without appointing
counsel or holding a hearing, the court denied defendant’s motion.
II. DISCUSSION
Defendant contends the trial court erred in admitting evidence of defendant’s 2002
prior conviction, his trial counsel rendered prejudicial ineffective assistance of counsel,
insufficient evidence supported the jury’s true finding on the gang enhancement
allegation, the court prejudicially failed to instruct the jury with CALCRIM No. 225, and
defendant was deprived of due process by the trial court’s failure to provide a fair trial
due to the aforementioned errors. We affirm.
First, the court was without jurisdiction to grant defendant’s motion. “‘[O]nce a
judgment is rendered, except for limited statutory exceptions [citations], the sentencing
court is without jurisdiction to vacate or modify the sentence, except pursuant to the
4 provisions of section 1170, subdivision (d). [Citation.] Section 1170, subdivision (d),
allows a sentencing court on its own motion to recall and resentence, subject to the
express limitation that the court must act to recall the sentence within 120 days after
committing the defendant to prison. [Citation.] Indeed, “the court loses ‘own-motion’
jurisdiction if it fails to recall a sentence within 120 days of the original commitment.”’”
(People v. Hernandez (2019) 34 Cal.App.5th 323, 326.)
The trial court rendered defendant’s judgment on May 19, 2014. Since
defendant’s judgment was final on January 19, 2016, when this court issued the remittitur
in Alvarado, supra, E061217, the trial court lacked jurisdiction to grant the relief
defendant requested. (People v. Hernandez, supra, 34 Cal.App.5th at pp. 325-326.)
Second, defendant is estopped from raising the same issues raised and rejected in
his appeal from the judgment. “[A]ppellate court judgments establish the law that ‘“must
be applied in the subsequent stages of the cause”’—i.e., the law of the case—‘“and they
are res adjudicata in other cases as to every matter adjudicated.”’” (People v. Barragan
(2004) 32 Cal.4th 236, 253.) A “‘decision on a matter properly presented on a prior
appeal becomes the law of the case even though it may not have been absolutely
necessary to the determination of the question whether the judgment appealed from
should be reversed. [Citations].’ [Citation.] Thus, application of the law-of-the-case
doctrine is appropriate where an issue presented and decided in the prior appeal, even if
not essential to the appellate disposition, ‘was proper as a guide to the court below on a
new trial.’” (People v. Boyer (2006) 38 Cal.4th 412, 442.) The “‘law-of-the-case
doctrine binds the trial court as to the law but controls the outcome only if the evidence
5 on retrial or rehearing of an issue is substantially the same as that upon which the
appellate ruling was based.’” (Id. at p. 443.) Here, because all the claims raised by
defendant in the motion below and on appeal were raised in and rejected by this court in
his appeal from the judgment, he is estopped from raising them again. (See Alvarado,
supra, E061217.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
CODRINGTON J.