People v. Lopez CA4/2

Opinion

Filed 12/21/23 P. v. Lopez CA4/2 See Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080979

v. (Super.Ct.No. FWV21002678)

JOSE FELIX LOPEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Richard V. Peel,

Judge. Dismissed.

Jose Felix Lopez, in propria persona; and Shay Dinata-Hanson, under appointment

by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

1 Jose Felix Lopez appeals the denial of his Penal Code section 1172.11 petition for

resentencing. After his counsel filed a no-issue brief under People v. Delgadillo (2022)

14 Cal.5th 216 (Delgadillo), Lopez filed his own supplemental brief. Because we lack

jurisdiction to consider his appeal, we dismiss.

BACKGROUND

In 2022 Lopez pled guilty to second degree robbery (§ 211) and admitted he used

a firearm (§ 12022.5, subd. (a).) The court sentenced him according to the terms of his

plea bargain to five years for the robbery and a consecutive four years for the firearm

enhancement.

In 2023 Lopez filed a petition for resentencing under section 1172.1. The court

denied this petition a little less than a month later. Lopez appealed.

ANALYSIS

On Lopez’s request, we appointed counsel to represent him on appeal. Counsel

filed a brief declaring they found no arguably meritorious issues to appeal, setting out a

statement of the case, and asking us to conduct an independent review of the record.

When appealing from a postconviction order a defendant does not have a

constitutional right to independent review under Anders/Wende2 if appellate counsel

cannot identify any arguable issues. (Delgadillo, supra, 14 Cal.5th at p. 231.) However,

“[i]f the defendant subsequently files a supplemental brief or letter, the Court of Appeal

1 Unlabeled statutory citations refer to the Penal Code.

2 Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).

2 is required to evaluate the specific arguments presented in that brief and to issue a written

opinion.” (Id. at p. 232.) Here, after appellate counsel filed a brief notifying us Lopez’s

appeal presented no arguable issues, we offered Lopez an opportunity to file a personal

supplemental brief, and he did so.

Section 1172.1 came into existence on June 30, 2022, after two changes to its

numbering. Substantially similar provisions were originally contained in section 1170,

subdivision (d). (People v. Braggs (2022) 85 Cal.App.5th 809, 817-818.) On January 1,

2022, the Legislature moved the recall and resentencing provisions of section 1170,

subdivision (d)(1), to new section 1170.03. (People v. McMurray (2022) 76 Cal.App.5th

1035, 1038.) Then, effective June 30, 2022, “[t]he Legislature . . . renumbered

section 1170.03 to section 1172.1, but made no substantive changes.” (People v. Salgado

(2022) 82 Cal.App.5th 376, 378, fn. 2.)

Under section 1172.1, a “court may, within 120 days of the date of commitment

on its own motion, at any time upon the recommendation of the secretary or the Board of

Parole Hearings in the case of a defendant incarcerated in state prison, the county

correctional administrator in the case of a defendant incarcerated in county jail, the

district attorney of the county in which the defendant was sentenced, or the Attorney

General if the Department of Justice originally prosecuted the case, recall the sentence

and commitment previously ordered and resentence the defendant in the same manner as

if they had not previously been sentenced . . . .” (§ 1172.1, subd. (a)(1).) Thus, only a

court, the Secretary of the Department of Corrections and Rehabilitation, the Board of

3 Parole Hearings, a county correctional administrator, a district attorney, or the Attorney

General may recommend or otherwise seek resentencing under section 1172.1. The

statute does not authorize the defendant themselves to recommend or seek resentencing.

Because of this, courts considering former section 1170, subdivision (d)(1), which

used to contain the resentencing provisions now contained in section 1172.1, have held

that it did not permit the inmate to move for recall and resentencing. “Section 1170

subdivision (d) does not confer standing on a defendant to initiate a motion to recall a

sentence.” (People v. Pritchett (1993) 20 Cal.App.4th 190, 193.) “Consequently, the

courts have uniformly held that an order denying a defendant’s request to resentence

pursuant to section 1170 subdivision (d) is not appealable as an order affecting the

substantial rights of the party . . . because the defendant has no right to request such an

order in the first instance.” (Id. at p. 194, italics omitted.)

It follows that we lack the authority to render a decision on the merits of appeals

from a defendant’s attempt to seek resentencing under section 1172.1. (People v.

Hernandez (2019) 34 Cal.App.5th 323, 326.) Accordingly, we dismiss the appeal.

DISPOSITION

We dismiss the appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J. I concur:

FIELDS J.

4 [People v. Lopez, E080979]

RAMIREZ, P.J.

I respectfully dissent. Our Supreme Court has afforded reviewing courts

discretion with respect to the disposition of postconviction appeals in which appointed

appellate counsel has filed a no-issues brief. (People v. Delgadillo (2022) 14

Cal.5th 216, 232.) I would exercise that discretion to conduct an independent review of

the record.

RAMIREZ P. J.