People v. Thompson CA4/2

• Court: California Court of Appeal
• Decided: December 6, 2024
• Docket: E084233
• Status: Unpublished

Opinion

Filed 12/6/24 P. v. Thompson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E084233

v. (Super.Ct.No. FVI1401879)

KEVION MICHAEL THOMPSON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Nicole Quintana

Winter, Judge. Dismissed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 INTRODUCTION

Defendant and appellant Kevion Michael Thompson appeals from a postjudgment

order denying his petition for resentencing under Penal Code1 sections 1170, subdivision

(d) and 1172.1. His appellate counsel filed a brief under People v. Delgadillo (2022) 14

Cal.5th 216 (Delgadillo), and defendant filed a supplemental brief. We dismiss the

appeal.

PROCEDURAL BACKGROUND

On October 10, 2014, defendant was charged by information with assault with a

firearm (§ 245, subd. (a)(2), count 1), criminal threats (§ 422, count 2), and disobeying a

court order (§ 166, subd. (a)(4), count 3). It was alleged as to counts 1 and 2 that

defendant personally used a firearm. (§§ 1203.06, subd. (a)(1)) & 12022.5, subd. (a).)

On December 10, 2014, the jury found defendant guilty as charged and found true

the personal firearm use enhancement as to counts 1 and 2.

On April 14, 2015, the court sentenced defendant to a total term of 14 years in

state prison, with credit for time served.

On April 10, 2024, defendant filed a pro per petition for sentence review and

asked the court to consider sections 1170, subdivision (d)(1) and 1172.1, Assembly Bill

Nos. 600, 1540, 3881, and Senate Bill Nos. 620 and 483, “and any other relevant

statutes.”

1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 On April 29, 2024, the court denied the petition, stating it lacked jurisdiction to

resentence defendant.

On June 25, 2024, defendant filed a timely notice of appeal, in propria persona.

DISCUSSION

Appellate counsel filed a Delgadillo brief in this case, which we accepted.

Accordingly, defendant was provided notice under Delgadillo, advising him that he could

file a supplemental brief within 30 days. However, upon our own review of defendant’s

petition, which was submitted under sections 1170, subdivision (d)(1) and 1172.1, we

now determine this was not appropriately filed as a Delgadillo case. Defendant was not

authorized to file a petition for resentencing under either section 1170, subdivision (d)(1)

or section 1172.1. Section 1170, subdivision (d)(1) only authorizes a defendant who was

sentenced to life without the possibility of parole to submit a petition under that section.

Section 1172.1 authorizes the court to recall and resentence a defendant, under specified

circumstances. (§ 1172.1, subd. (a).) It does not entitle a defendant to file a petition. (§

1172.1, subd. (c).) Because defendant was not authorized to file his resentencing

petition, the trial court lacked jurisdiction to adjudicate it. (See People v. Burgess (2022)

86 Cal.App.5th 375, 380-382; §§ 1170, subd. (d) and 1172.1, subd. (c).) Since the court

lacked jurisdiction when it denied defendant’s petition, denial of the petition could not

have affected his substantial rights. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-

1726.) Accordingly, the order denying defendant's petition for resentencing is not an

3 appealable order, and the appeal must be dismissed. (Id. at p. 1725; see People v.

Fuimaono (2019) 32 Cal.App.5th 132, 135, 243 Cal. Rptr. 3d 545.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

CODRINGTON Acting P. J.

RAPHAEL J.