Filed 10/11/24 P. v. Williams CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083205 Plaintiff and Respondent, (Super.Ct.No. BAF1100297) v. OPINION TONY EUGENE WILLIAMS,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
Tony Eugene Williams, in pro. per.; and Jo Pastore, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 Tony Eugene Williams appeals the denial of his Penal Code section 1172.751
petition. After his counsel filed a no-issue brief under People v. Delgadillo (2022) 14
Cal.5th 216 (Delgadillo), Williams filed his own supplemental brief. We dismiss.
BACKGROUND
In December 2011 the prosecution charged Williams with two counts of robbery
(§ 211) and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)).
The prosecution also alleged firearm use enhancements in connection with counts 1 and
2. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) Finally, the prosecution alleged three
prior prison offenses as defined under section 667.5, subdivision (b), three serious prior
offenses under section 667, subdivision (a), and three special prior offenses under
section 667, subdivisions (c) and (e)(2)(A), and section 1170.12, subdivision (c)(2)(A).
A jury convicted Williams of the three primary counts. It is unclear from the
record before us whether the jury made any finding on the enhancements. However, the
trial court imposed sentences for the firearm use enhancements connected to counts 1 and
2, and it imposed five-year sentences for three of the alleged priors. In total, the court
imposed an indeterminate term of 50 years to life, though the record does not disclose
exactly how the court arrived at this aggregate sentence.
In August 2023, Williams petitioned for resentencing under section 1172.75. The
court denied this petition in that same month. Williams then sent multiple ex parte
1 Unlabeled statutory citations refer to the Penal Code.
2 communications to the trial court requesting updates on the status of his petition, and
each time the court took no action or denied the request.
Williams filed his notice of appeal either in January or February 2024. The notice
is file-stamped February 5, 2024, and Williams’s signature on the notice is dated
January 31, 2024. However, the clerk’s notification of filing states that the notice of
appeal was filed on January 5, 2024.
ANALYSIS
On Williams’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 has no constitutional
right to independent review under Anders/Wende.2 (Delgadillo, supra, 14 Cal.5th at
pp. 227, 231.) Nevertheless, the appellate court is to inform the defendant that he may
personally file a supplemental brief, and “[i]f the defendant subsequently files a
supplemental brief or letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.” (Id. at p. 232.) “If the
defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss
the appeal as abandoned.” (Ibid.) “If the appeal is dismissed as abandoned, the Court of
Appeal does not need to write an opinion but should notify the defendant when it
dismisses the matter.” (Ibid.) Here, after appellate counsel filed a brief notifying us
2 Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.
3 Williams’s appeal presented no arguable issues, we offered Williams an opportunity to
file a personal supplemental brief, and he did.
There are multiple reasons why this appeal cannot be meritorious. First, it appears
the appeal is not timely. Under California Rules of Court, rule 8.406, “a notice of appeal
must be filed within 60 days after the rendition of the judgment or the making of the
order being appealed.” The trial court denied Williams’s petition in August 2023, but his
notice of appeal was filed at the earliest in January 2024, well beyond the 60-day
deadline to appeal an order from August 2023. Williams’s notice of appeal claims he is
appealing an order from December 1, 2023. However, the court’s December 1, 2023
order responded to Williams’s correspondence in November 2023, which he sent after the
court had already considered and denied the petition.
Nor would we be able to consider Williams’s appeal if it was timely.
“[S]ection 1172.75 does not authorize appellants to file a petition or a motion to strike the
unauthorized enhancements.” (People v. Escobedo (2023) 95 Cal.App.5th 440, 447-448
(Escobedo).) “[T]he 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. Under this express procedure, any review and verification by the
[trial] court in advance of resentencing is only triggered by receipt of the necessary
information from the [California Department of Corrections and Rehabilitation (CDCR)]
Secretary or a county correctional administrator, not by any individual defendant.
[Citation.] Thus, section 1172.75 simply does not contemplate resentencing relief
4 initiated by any individual defendant’s petition or motion.” (People v. Burgess (2022) 86
Cal.App.5th 375, 384 (Burgess).) When a defendant appeals the denial of such a motion,
the appropriate remedy is to dismiss. (See id. at p. 385; see also Escobedo, at p. 452.)3
Finally, even if we were able to consider Williams’s appeal on the merits,
section 1172.75 would offer him no relief. Section 1172.75 invalidates prior prison term
enhancements imposed under section 667.5, subdivision (b), before January 1, 2020, and
permits courts to resentence defendants serving terms that include such enhancements.
As far as we can infer from the record we have, Williams’s sentence includes no prior
prison term enhancement. Aside from the indeterminate terms for the principal charges,
the trial court imposed sentences for the firearm use enhancements under
section 12022.53, subdivision (b), and five years each for the unspecified priors.
Section 667, subdivision (a), requires “[a] person convicted of a serious felony who
previously has been convicted of a serious felony . . . shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year enhancement for each
such prior conviction.” Section 667.5, subdivision (b), on the other hand, previously
“required trial courts to impose a one-year sentence enhancement for each true finding on
an allegation the defendant had served a separate prior prison term.” (Escobedo, supra,
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Filed 10/11/24 P. v. Williams 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, E083205 Plaintiff and Respondent, (Super.Ct.No. BAF1100297) v. OPINION TONY EUGENE WILLIAMS,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
Tony Eugene Williams, in pro. per.; and Jo Pastore, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 Tony Eugene Williams appeals the denial of his Penal Code section 1172.751
petition. After his counsel filed a no-issue brief under People v. Delgadillo (2022) 14
Cal.5th 216 (Delgadillo), Williams filed his own supplemental brief. We dismiss.
BACKGROUND
In December 2011 the prosecution charged Williams with two counts of robbery
(§ 211) and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)).
The prosecution also alleged firearm use enhancements in connection with counts 1 and
2. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) Finally, the prosecution alleged three
prior prison offenses as defined under section 667.5, subdivision (b), three serious prior
offenses under section 667, subdivision (a), and three special prior offenses under
section 667, subdivisions (c) and (e)(2)(A), and section 1170.12, subdivision (c)(2)(A).
A jury convicted Williams of the three primary counts. It is unclear from the
record before us whether the jury made any finding on the enhancements. However, the
trial court imposed sentences for the firearm use enhancements connected to counts 1 and
2, and it imposed five-year sentences for three of the alleged priors. In total, the court
imposed an indeterminate term of 50 years to life, though the record does not disclose
exactly how the court arrived at this aggregate sentence.
In August 2023, Williams petitioned for resentencing under section 1172.75. The
court denied this petition in that same month. Williams then sent multiple ex parte
1 Unlabeled statutory citations refer to the Penal Code.
2 communications to the trial court requesting updates on the status of his petition, and
each time the court took no action or denied the request.
Williams filed his notice of appeal either in January or February 2024. The notice
is file-stamped February 5, 2024, and Williams’s signature on the notice is dated
January 31, 2024. However, the clerk’s notification of filing states that the notice of
appeal was filed on January 5, 2024.
ANALYSIS
On Williams’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 has no constitutional
right to independent review under Anders/Wende.2 (Delgadillo, supra, 14 Cal.5th at
pp. 227, 231.) Nevertheless, the appellate court is to inform the defendant that he may
personally file a supplemental brief, and “[i]f the defendant subsequently files a
supplemental brief or letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.” (Id. at p. 232.) “If the
defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss
the appeal as abandoned.” (Ibid.) “If the appeal is dismissed as abandoned, the Court of
Appeal does not need to write an opinion but should notify the defendant when it
dismisses the matter.” (Ibid.) Here, after appellate counsel filed a brief notifying us
2 Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.
3 Williams’s appeal presented no arguable issues, we offered Williams an opportunity to
file a personal supplemental brief, and he did.
There are multiple reasons why this appeal cannot be meritorious. First, it appears
the appeal is not timely. Under California Rules of Court, rule 8.406, “a notice of appeal
must be filed within 60 days after the rendition of the judgment or the making of the
order being appealed.” The trial court denied Williams’s petition in August 2023, but his
notice of appeal was filed at the earliest in January 2024, well beyond the 60-day
deadline to appeal an order from August 2023. Williams’s notice of appeal claims he is
appealing an order from December 1, 2023. However, the court’s December 1, 2023
order responded to Williams’s correspondence in November 2023, which he sent after the
court had already considered and denied the petition.
Nor would we be able to consider Williams’s appeal if it was timely.
“[S]ection 1172.75 does not authorize appellants to file a petition or a motion to strike the
unauthorized enhancements.” (People v. Escobedo (2023) 95 Cal.App.5th 440, 447-448
(Escobedo).) “[T]he 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. Under this express procedure, any review and verification by the
[trial] court in advance of resentencing is only triggered by receipt of the necessary
information from the [California Department of Corrections and Rehabilitation (CDCR)]
Secretary or a county correctional administrator, not by any individual defendant.
[Citation.] Thus, section 1172.75 simply does not contemplate resentencing relief
4 initiated by any individual defendant’s petition or motion.” (People v. Burgess (2022) 86
Cal.App.5th 375, 384 (Burgess).) When a defendant appeals the denial of such a motion,
the appropriate remedy is to dismiss. (See id. at p. 385; see also Escobedo, at p. 452.)3
Finally, even if we were able to consider Williams’s appeal on the merits,
section 1172.75 would offer him no relief. Section 1172.75 invalidates prior prison term
enhancements imposed under section 667.5, subdivision (b), before January 1, 2020, and
permits courts to resentence defendants serving terms that include such enhancements.
As far as we can infer from the record we have, Williams’s sentence includes no prior
prison term enhancement. Aside from the indeterminate terms for the principal charges,
the trial court imposed sentences for the firearm use enhancements under
section 12022.53, subdivision (b), and five years each for the unspecified priors.
Section 667, subdivision (a), requires “[a] person convicted of a serious felony who
previously has been convicted of a serious felony . . . shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year enhancement for each
such prior conviction.” Section 667.5, subdivision (b), on the other hand, previously
“required trial courts to impose a one-year sentence enhancement for each true finding on
an allegation the defendant had served a separate prior prison term.” (Escobedo, supra,
3 Other cases have held that a court may consider an unauthorized motion on its merits if the CDCR has notified the court the defendant is eligible for relief. (See People v. Cota (2023) 97 Cal.App.5th 318, 333 [disagreeing “with Escobedo to the extent that case suggests that a court lacks jurisdiction to resentence a defendant who has been identified by the [CDCR] as eligible for resentencing pursuant to section 1172.75 simply because that defendant also has filed a motion for such relief”].) Those cases do not apply here, as Williams is categorically ineligible for relief.
5 95 Cal.App.5th at p. 445, italics added.) Because Williams did not receive any one-year
terms for his prior convictions, we can safely conclude he was not sentenced under
section 667.5, subdivision (b), and thus section 1172.75 offers him no relief.
Williams argues the ambiguity in his sentence nevertheless entitles him to relief.
According to Williams, because the record is unclear about what happened to the alleged
enhancements under section 667.5, subdivision (b), he remains in jeopardy of having a
sentence imposed for those allegations and is thus entitled to recall and resentencing now.
But even though the record as it exists before us does not disclose what happened with
every enhancement allegation, he is still not eligible for resentencing until and unless he
is serving a sentence containing these invalid terms. Indeed, Williams faces no
continuing jeopardy precisely because these terms are now unauthorized and could not be
imposed.
Because Williams’s appeal was untimely, he was not authorized to bring a petition
under section 1172.75, and was not eligible for relief even if he could, he is not
authorized to appeal from the denial of his petition. Therefore, we dismiss.
6 DISPOSITION
We dismiss the appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J.
We concur:
MILLER Acting P. J.
MENETREZ J.