People v. Burgess

86 Cal.App.5th 375

302 Cal.Rptr.3d 461

The PEOPLE, Plaintiff and Respondent,

v.Jeffrey Alan BURGESS, Defendant and Appellant.

A164763, A164969

Court of Appeal, First District, Division 3, California.

Filed December 15, 2022

Certified for Partial Publication.^*

Office of Attorney General, Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney general, Jeffrey M. Laurence, Senior Assistant Attorney General, Amit Kurlekar, Deputy Attorney General, Jalem Z. Peguero, Deputy Attorney General, for Plaintiff and Respondent.

First District Appellate Project, Catherine White, San Diego, for Defendant and Appellant.

Petrou, J.

In these consolidated appeals, defendant Jeffrey Alan Burgess appeals the denial of his motion for resentencing under Penal Code section 1172.75¹ (former section 1171.1)² , as well as the denial of his motion for resentencing under section 1385. We dismiss both appeals.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2009, the Humboldt County District Attorney filed an amended information that charged Burgess with first degree residential robbery ( §§ 211, 213, subd. (a)(1)(A) ) and alleged an enhancement for personally discharging a firearm during the robbery ( § 12022.53, subd. (c) ). The information included a prior prison term enhancement allegation ( § 667.5, subd. (b) ).

In January 2010, pursuant to a plea agreement, Burgess was sentenced to 30 years in prison: nine years for the underlying robbery, a consecutive 20 years for the firearm use enhancement, and a consecutive one year for his prior prison term enhancement.

In February 2022, Burgess filed a motion in propria persona to vacate his one-year prison prior enhancement pursuant to section 667.5 and for resentencing. Burgess averred that newly amended language in section 667.5 rendered his existing sentence an "illegal sentence." The trial court issued a written order denying Burgess’ motion to vacate. The court stated in relevant part: "[Burgess] erroneously [sought] relief under Penal Code § 667.5. It is the newly added Penal Code § 1171.1 that affords the type of relief sought by Petitioner. However, Penal Code § 1171.1 does not allow Petitioner to seek such relief from this Court on their own motion. See Cal. Pen. Code § 1171.1(b)." Burgess appealed the court's order. This appeal has been designated Case No. A164763.

In March 2022, Burgess again petitioned to vacate his sentence for resentencing, seeking relief this time pursuant to "new statutory law under Senate Bill 81" which enacted amendments to section 1385. The trial court issued a written order denying Burgess’ motion for resentencing. The court stated in relevant part: "[Burgess] seeks relief pursuant to Penal Code § 1385 and specifically cites to the amendments of that code resulting from Senate Bill 81, effective January 1, 2022. The amendments to Penal Code § 1385 do not allow a defendant, or petitioner, to seek dismissal or the striking of an enhancement on their own motion. Further, the newly added subdivision (c) only applies to sentences occurring after January 1, 2022." Burgess appealed this order as well. This appeal has been designated Case No. A164969.

On April 19, 2022, in A164763, Burgess through appointed counsel filed his opening brief contending the trial court erred in refusing to recall his sentence and resentence him in accord with section 1172.75. On May 12, 2022, in A164969, Burgess through his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 ( Wende ), requesting that this court independently review the record to determine whether there are any arguable issues on appeal. Counsel declared that Burgess was advised of his right to file a supplemental brief, but Burgess has not filed any such brief.

On the court's own motion, in the interests of judicial economy, we consolidate A164763 and A164969.

DISCUSSION

A. A164763 – Motion to Vacate Prison Prior Term Enhancement and Resentence Pursuant to Amended Section 667.5, subdivision (b)

Prior to January 1, 2020, section 667.5, subdivision (b) 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 and had not remained free of custody for at least five years. (Former § 667.5, subd. (b).) Effective January 1, 2020, Senate Bill 136 (Stats. 2019, ch. 590) ("SB 136") amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. ( § 667.5, subd. (b) ; Stats. 2019, ch. 590, § 1 ; People v. Jennings (2019) 42 Cal.App.5th 664, 681, 255 Cal.Rptr.3d 713.) Enhancements based on prior prison terms served for other offenses became legally invalid. ( Id. at p. 682, 255 Cal.Rptr.3d 713.) The amendment was to be applied retroactively to all cases not yet final on January 1, 2020. ( Id. at pp. 681–682, 255 Cal.Rptr.3d 713.)

Later, in 2021, the Legislature enacted Senate Bill No. 483 ("SB 483"). This bill sought to make the changes implemented by SB 136 retroactive. (Stats. 2021, ch. 728, § 1 ["it is the intent of the Legislature to retroactively apply ... Senate Bill 136 of the 2019-20 Regular Session to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements"].) It took effect on January 1, 2022, and added former section 1171.1, now section 1172.75, to the Penal Code. (Stats. 2021, ch. 728, § 3 ; Stats. 2022, ch. 58, § 12.)

Section 1172.75 states that "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense ... is legally invalid." ( § 1172.75, subd. (a).) The statute further establishes a mechanism to provide affected defendants a remedy for those legally invalid enhancements. Subdivision (b) directs the Secretary of the California Department of Corrections and Rehabilitation ("CDCR") and the correctional administrator of each county to "identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and ... provide the name of each person, along with the person's date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement." ( § 1172.75, subd. (b).) The statute provides this is to be done in two groups. First, "[b]y March 1, 2022, for individuals who have served their base term and any other enhancements and are currently serving a sentence based on the [affected] enhancement." ( § 1172.75, subd. (b)(1).) And second, "[b]y July 1, 2022, for all other individuals." ( § 1172.75, subd. (b)(2).)

After the trial court receives from the CDCR and county correctional administrator the information included in subdivision (b) of the statute, "the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)," and if so, "recall the sentence and resentence the defendant." ( § 1172.75, subd. (c).)

This part of section 1172.75 also divides relief into two parts. Specifically, the review and resentencing shall be completed "[b]y October 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the [affected] enhancement" ( § 1172.75, subd. (c)(1) ) and "[b]y December 31, 2023, for all other individuals" ( § 1172.75, subd. (c)(2) ).

Burgess contends that his "motion requesting resentencing contained all the required information" set forth in section 1172.75, subdivision (b), so the trial court was required to verify that the now illegal enhancement was part of his original sentence and to recall the sentence. He says the trial court erred in denying his motion based on its view that section 1172.75 did not allow him to seek such relief from the court on his own motion.

This court, however, lacks jurisdiction to consider Burgess’ appeal of the trial court's order denying his petition for resentencing. In People v. King (2022) 77 Cal.App.5th 629, 292 Cal.Rptr.3d 731 ( King ), rev. denied July 27, 2022, the defendant moved to vacate an unauthorized portion of his 105-year sentence, approximately 35 years after he was originally sentenced. ( Id. at p. 633, 292 Cal.Rptr.3d 731.) The court explained: "The general rule is that ‘once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence.’ [Citations.] And, ‘[i]f the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed.’ " ( Id. at p. 634, 292 Cal.Rptr.3d 731.) Several exceptions to this jurisdictional rule were noted by the court. For instance, even after a judgment is final, the court retains jurisdiction to resentence the defendant pursuant to "specific statutory avenues for incarcerated defendants to seek resentencing in particular cases," or pursuant to a "properly filed" habeas petition. ( Id. at p. 637, 292 Cal.Rptr.3d 731.) But the court found no exception applied. ( Id. at pp. 637–642, 292 Cal.Rptr.3d 731.)

The King court also explained that a "freestanding motion challenging an incarcerated defendant's sentence is not a proper procedural mechanism to seek relief. A motion is not an independent remedy, but must be attached to some ongoing action. [Citation.] Thus, a defendant who wishes to challenge a sentence as unlawful after the defendant's conviction is final and after the defendant has begun serving the sentence must do more than simply file a motion in the trial court making an allegation that the sentence is legally infirm." ( King, supra , 77 Cal.App.5th at p. 640, 292 Cal.Rptr.3d 731.) Since the defendant in that case had filed his motion to correct his sentence...