Filed 10/24/23 P. v. Hart 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080958
v. (Super.Ct.No. FSB035746)
DONNELL ANTHONY HART, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T.
Wilson, Jr., Judge. Dismissed.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Donnell Anthony Hart filed letters requesting that the
court strike the prior prison term, prior serious felony conviction, and firearm
enhancements attached to his judgment. The court denied the requests.
1 After defense counsel filed a notice of appeal, this court appointed counsel to
represent him. On appeal, defendant’s appointed counsel has filed a brief pursuant to
People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the
case, requesting that we exercise our discretion to independently review the record for
error, and raising six potentially arguable issues: (1) whether the court unlawfully
sentenced defendant on the personal use enhancements attached to his convictions for
robbery and being a felon in possession of a firearm; (2) whether the court had
jurisdiction to strike the prior serious felony conviction and firearm enhancements;
(3) whether the court had jurisdiction to recall and resentence defendant pursuant to Penal
Code section 1172.1;1 (4) whether the court had jurisdiction to strike defendant’s prior
prison term enhancement, which was based on a felony conviction that had been reduced
to a misdemeanor; (5) whether the court had jurisdiction to strike defendant’s prior prison
term enhancement pursuant to section 1172.75; and (6) whether the prior prison term
enhancement could be stricken at any time as an unauthorized sentence.
We gave defendant the opportunity to file a personal supplemental brief. We
noted that if he did not do so, we could dismiss the appeal; nevertheless, he has not filed
one. Under these circumstances, we have no obligation to independently review the
record for error. (Delgadillo, supra, 14 Cal.5th at pp. 224-231.) Rather, we dismiss the
appeal for lack of jurisdiction. (People v. King (2022) 77 Cal.App.5th 629, 634 (King).)
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 I. PROCEDURAL HISTORY2
On or about September 2, 1999, defendant pled guilty to receiving stolen property
under section 496, subdivision (a). The trial court granted defendant three years of
probation. (Hart II, supra, E075912.) After defendant violated his probation on three
separate occasions, the court sentenced him to two years in state prison.
On September 17, 2003, a jury found defendant guilty of unlawfully taking or
driving a vehicle (Veh. Code, § 10851, subd. (a); count 1), two counts of first degree
robbery (Pen. Code, § 211; counts 2 & 8), three counts of false imprisonment (Pen. Code,
§ 236; counts 3, 4, & 5), second degree robbery (Pen. Code, § 211; count 6), and being a
felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 7). The jury
additionally found true allegations in counts 2, 3, 4, 5, and 8, that a principal was armed
with a firearm (Pen. Code, § 12022, subd. (a)), and that defendant personally used a
firearm in his commission of the count 6 offense (Pen. Code, § 12022.53, subd. (b)).
(Hart I, supra, E036649.)
The court thereafter found true allegations that defendant had suffered a prior
serious felony conviction (§ 667, subd. (a)) and prior prison term (§ 667.5, subd. (b)).3
2 We granted defendant’s request that we take judicial notice of this court’s prior opinions from defendant’s appeals from the original judgment (People v. Hart (Feb. 15, 2006, E036649) [nonpub. opn.]) (Hart I), and from a section 1170.18 petition (People v. Hart (Jun. 1, 2021, E075912) [nonpub. opn.]) (Hart II)). We shall refer to defendant’s underlying conviction in the first appeal as Hart I and his underly convictions in the latter case as Hart II.
3 Defendant’s prior prison term enhancement was based on his conviction and sentence in Hart II.
3 The court sentenced defendant to a determinate term of imprisonment of 31 years eight
months. (Hart I, supra, E036649.)
Defendant appealed the judgment in Hart I. This court affirmed. (Hart I, supra,
E036649.)
On August 21, 2017, a case manager from the California Department of
Corrections and Rehabilitation (CDCR) wrote the superior court a letter reflecting that
the abstract of judgment in Hart I might be in error because it did not include counts 3
and 4, and reflected one-third the term, instead of the full one-year term, on the prior
prison term enhancement. On November 14, 2017, the court filed an amended abstract of
judgment reflecting counts 3 and 4, but neglected to impose the full, one-year term on the
prior prison term enhancement.
On January 31, 2020, defendant filed a petition under section 1170.18 (Proposition
47) to reduce his Hart II conviction to a misdemeanor. On August 21, 2020, at the
hearing on defendant’s petition, the trial court denied the petition. (Hart II, supra,
E075912.)
Defendant appealed. This court reversed the order, remanding the matter to the
trial court to determine the value of the stolen property that was the subject of
defendant’s conviction. (Hart II, supra, E075912.) On July 30, 2021, the trial court
granted defendant’s request to reduce his conviction in Hart II from a felony to a
misdemeanor.
4 On September 22, 2020, defendant filed a letter requesting that the court strike the
firearm enhancements in Hart I. The court appointed counsel for defendant and
repeatedly continued the matter pursuant to defense counsel’s requests. On November 4,
2021, the People filed opposition to defendant’s request contending that the court’s
correction of the abstract of judgment did not bestow jurisdiction upon it to grant further
relief, and that, contrary to defendant’s arguments, the court properly imposed the
enhancements. On February 4, 2022, the court requested formal briefing from the parties
before it would rule.
On March 10, 2022, defendant filed a request that the court strike his prior prison
term, prior serious felony conviction, and firearm enhancements in Hart I. On June 14,
2022, the People filed opposition to defendant’s request contending that the court lacked
jurisdiction to grant the relief requested because defendant’s judgment was final. On July
29, 2022, defense counsel filed a reply to the People’s opposition maintaining that the
court had broad discretion to strike the enhancements. After several continuances,
defendant filed his own reply to the People’s opposition, relying on the CDCR’s letter as
the basis for the court’s jurisdiction to grant him the relief requested.
At a hearing on March 14, 2023, defense counsel requested the court strike the
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 10/24/23 P. v. Hart 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, E080958
v. (Super.Ct.No. FSB035746)
DONNELL ANTHONY HART, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T.
Wilson, Jr., Judge. Dismissed.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Donnell Anthony Hart filed letters requesting that the
court strike the prior prison term, prior serious felony conviction, and firearm
enhancements attached to his judgment. The court denied the requests.
1 After defense counsel filed a notice of appeal, this court appointed counsel to
represent him. On appeal, defendant’s appointed counsel has filed a brief pursuant to
People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the
case, requesting that we exercise our discretion to independently review the record for
error, and raising six potentially arguable issues: (1) whether the court unlawfully
sentenced defendant on the personal use enhancements attached to his convictions for
robbery and being a felon in possession of a firearm; (2) whether the court had
jurisdiction to strike the prior serious felony conviction and firearm enhancements;
(3) whether the court had jurisdiction to recall and resentence defendant pursuant to Penal
Code section 1172.1;1 (4) whether the court had jurisdiction to strike defendant’s prior
prison term enhancement, which was based on a felony conviction that had been reduced
to a misdemeanor; (5) whether the court had jurisdiction to strike defendant’s prior prison
term enhancement pursuant to section 1172.75; and (6) whether the prior prison term
enhancement could be stricken at any time as an unauthorized sentence.
We gave defendant the opportunity to file a personal supplemental brief. We
noted that if he did not do so, we could dismiss the appeal; nevertheless, he has not filed
one. Under these circumstances, we have no obligation to independently review the
record for error. (Delgadillo, supra, 14 Cal.5th at pp. 224-231.) Rather, we dismiss the
appeal for lack of jurisdiction. (People v. King (2022) 77 Cal.App.5th 629, 634 (King).)
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 I. PROCEDURAL HISTORY2
On or about September 2, 1999, defendant pled guilty to receiving stolen property
under section 496, subdivision (a). The trial court granted defendant three years of
probation. (Hart II, supra, E075912.) After defendant violated his probation on three
separate occasions, the court sentenced him to two years in state prison.
On September 17, 2003, a jury found defendant guilty of unlawfully taking or
driving a vehicle (Veh. Code, § 10851, subd. (a); count 1), two counts of first degree
robbery (Pen. Code, § 211; counts 2 & 8), three counts of false imprisonment (Pen. Code,
§ 236; counts 3, 4, & 5), second degree robbery (Pen. Code, § 211; count 6), and being a
felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 7). The jury
additionally found true allegations in counts 2, 3, 4, 5, and 8, that a principal was armed
with a firearm (Pen. Code, § 12022, subd. (a)), and that defendant personally used a
firearm in his commission of the count 6 offense (Pen. Code, § 12022.53, subd. (b)).
(Hart I, supra, E036649.)
The court thereafter found true allegations that defendant had suffered a prior
serious felony conviction (§ 667, subd. (a)) and prior prison term (§ 667.5, subd. (b)).3
2 We granted defendant’s request that we take judicial notice of this court’s prior opinions from defendant’s appeals from the original judgment (People v. Hart (Feb. 15, 2006, E036649) [nonpub. opn.]) (Hart I), and from a section 1170.18 petition (People v. Hart (Jun. 1, 2021, E075912) [nonpub. opn.]) (Hart II)). We shall refer to defendant’s underlying conviction in the first appeal as Hart I and his underly convictions in the latter case as Hart II.
3 Defendant’s prior prison term enhancement was based on his conviction and sentence in Hart II.
3 The court sentenced defendant to a determinate term of imprisonment of 31 years eight
months. (Hart I, supra, E036649.)
Defendant appealed the judgment in Hart I. This court affirmed. (Hart I, supra,
E036649.)
On August 21, 2017, a case manager from the California Department of
Corrections and Rehabilitation (CDCR) wrote the superior court a letter reflecting that
the abstract of judgment in Hart I might be in error because it did not include counts 3
and 4, and reflected one-third the term, instead of the full one-year term, on the prior
prison term enhancement. On November 14, 2017, the court filed an amended abstract of
judgment reflecting counts 3 and 4, but neglected to impose the full, one-year term on the
prior prison term enhancement.
On January 31, 2020, defendant filed a petition under section 1170.18 (Proposition
47) to reduce his Hart II conviction to a misdemeanor. On August 21, 2020, at the
hearing on defendant’s petition, the trial court denied the petition. (Hart II, supra,
E075912.)
Defendant appealed. This court reversed the order, remanding the matter to the
trial court to determine the value of the stolen property that was the subject of
defendant’s conviction. (Hart II, supra, E075912.) On July 30, 2021, the trial court
granted defendant’s request to reduce his conviction in Hart II from a felony to a
misdemeanor.
4 On September 22, 2020, defendant filed a letter requesting that the court strike the
firearm enhancements in Hart I. The court appointed counsel for defendant and
repeatedly continued the matter pursuant to defense counsel’s requests. On November 4,
2021, the People filed opposition to defendant’s request contending that the court’s
correction of the abstract of judgment did not bestow jurisdiction upon it to grant further
relief, and that, contrary to defendant’s arguments, the court properly imposed the
enhancements. On February 4, 2022, the court requested formal briefing from the parties
before it would rule.
On March 10, 2022, defendant filed a request that the court strike his prior prison
term, prior serious felony conviction, and firearm enhancements in Hart I. On June 14,
2022, the People filed opposition to defendant’s request contending that the court lacked
jurisdiction to grant the relief requested because defendant’s judgment was final. On July
29, 2022, defense counsel filed a reply to the People’s opposition maintaining that the
court had broad discretion to strike the enhancements. After several continuances,
defendant filed his own reply to the People’s opposition, relying on the CDCR’s letter as
the basis for the court’s jurisdiction to grant him the relief requested.
At a hearing on March 14, 2023, defense counsel requested the court strike the
prior prison term, prior serious felony, and firearm enhancements. The People argued the
court lacked jurisdiction to grant the relief requested because defendant’s judgment was
final: “Defendant was sentenced over 18 years ago. The Court no longer has
jurisdiction, and the defendant has no standing to request this motion on his own.” The
5 court denied the requests, but denied the request with respect to the prior prison term
enhancement without prejudice.
II. DISCUSSION
Because defendant’s judgment in Hart I was final when Proposition 47 took
effect, the court was without jurisdiction to grant his personally filed motion to strike his
prior prison term enhancement. (People v. Buycks (2018) 5 Cal.5th 857, 896.) Section
1171.1, which was enacted by Senate Bill No. 483 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 728, § 3), was signed into law in October 2021, and became effective on January 1,
2022. It provides another procedure by which the CDCR may notify the sentencing court
of a person in their custody who is serving a term from a judgment that includes a section
667.5 enhancement. (§ 1171.1, subd. (b).) This notification vests the trial court with
jurisdiction to review the judgment and recall and resentence. (§ 1171.1, subd. (c).)
While section 1171.1 applies to both final and nonfinal judgments, it does not include a
provision permitting defendants to personally file motions seeking resentencing.
(§ 1171.1, subd. (b).)
Therefore, because the court had no jurisdiction to act upon the defendant’s
personally filed request; because the CDCR’s letter to the superior court was sent long
before both the Governor signed Senate Bill No. 483 into law and the date that law
became effective; and because the CDCR’s letter did not recommend the striking of the
section 667.5, subdivision (b) enhancement, the court below had no jurisdiction to act on
that portion of defendant’s requests. Thus, similarly, this court does not have jurisdiction
6 to hear the appeal. (King, supra, 77 Cal.App.5th at p. 639 [“A trial court order denying
relief that the court has no jurisdiction to grant does not affect a defendant’s substantial
rights and is therefore not appealable . . . .”].) With respect to all other aspects of the
appealed order, we decline to exercise our discretion to independently review the matter.
(Delgadillo, supra, 14 Cal.5th. at pp. 224-231.)
III. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.