People v. Escobedo

95 Cal.App.5th 440

313 Cal.Rptr.3d 557

The PEOPLE, Plaintiff and Respondent,

v.Jacob ESCOBEDO, Defendant and Appellant.

The People, Plaintiff and Respondent,

v.Arthur Chavira, Defendant and Appellant.

2d Crim. No. B322608

2d Crim. No. B323765

Court of Appeal, Second District, Division 6, California.

Filed September 12, 2023

As Modified on Denial of Rehearing October 2, 2023

Claudia Y. Bautista, Public Defender, Thomas Hartnett, Snr. Deputy Public Defender, for Defendants and Appellants.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Rene Judkiewicz, Viet Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION ON REHEARING

YEGAN, J.

Jacob Escobedo purports to appeal from the trial court's postjudgment order denying his petition to strike two prior prison term enhancements imposed pursuant to former Penal Code section 667.5, subdivision (b) (667.5(b)).¹ In a separate proceeding, Arthur Chavira purports to appeal from a similar postjudgment order. We dismiss both appeals. The orders appealed from are nonappealable because the trial court lacked jurisdiction to adjudicate the petitions.

Appellants’ prior prison terms had been served for offenses that were not sexually violent. After imposition of the prior prison term enhancements, former section 667.5(b) was amended to limit its application to prison terms served for sexually violent offenses. Appellants contend the trial court erroneously denied their petitions to strike the now invalid prior prison term enhancements. But as we explain in this opinion, the Legislature has not authorized their appeals from the trial court's orders. " ‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ " ( People v. Mazurette (2001) 24 Cal.4th 789, 792, 102 Cal.Rptr.2d 555, 14 P.3d 227.)

Section 1237, subdivision (b) provides that a defendant may appeal "[f]rom any order made after judgment, affecting the substantial rights of the party ." (Italics added.) The present appeals are examples of an all-too-familiar pattern in which the Court of Appeal is becoming a court of purported postjudgment appeals from orders that are nonappeable because they do not affect the appellant's substantial rights. (See, e.g., People v. Hodges (2023) 92 Cal.App.5th 186, 190, 309 Cal.Rptr.3d 371 ["Because the trial court did not have jurisdiction to grant appellant's request, its order could not, and does not, affect his substantial rights"]; People v. Alexander (2020) 45 Cal.App.5th 341, 344, 258 Cal.Rptr.3d 665 ["the trial court correctly concluded that it lacked jurisdiction to grant Alexander's motion.... An order denying a motion the court lacks jurisdiction to grant does not affect a defendant's substantial rights. [Citation.] Any appeal from such an order must be dismissed"].)

One-Year Prior Prison Term Enhancement: Statutory History

We do not review the wisdom of legislative enactments. ( People v. Pecci (1999) 72 Cal.App.4th 1500, 1506, 86 Cal.Rptr.2d 43, citing Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099, 282 Cal.Rptr. 841, 811 P.2d 1025.) Since at least 1923 recidivism statutes have been a staple in California jurisprudence. But the Legislature has recently elected to curtail their use in some instances. (Former § 644, subds. (a), (b) ; In re Rosencrantz (1928) 205 Cal. 534, 536, 271 P. 902 ; Fricke & Alarcon, California Criminal Law (10th ed. 1970) ch. 2, pp. 20-21.)

"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 No. 136 (2019-2020 Reg. Sess.) (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. [Citations.] Enhancements based on prior prison terms served for other offenses became legally invalid. [Citation.]" ( People v. Burgess (2022) 86 Cal.App.5th 375, 379-380, 302 Cal.Rptr.3d 461, review denied March 15, 2023 ( Burgess ).)

"Later, in 2021, the Legislature enacted Senate Bill No. 483 (2021-2022 Reg. Sess.) [(‘SB 483’)]. This bill sought to make the changes implemented by [SB] 136 retroactive.... 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.)" ( Burgess , supra , 86 Cal.App.5th at p. 380, 302 Cal.Rptr.3d 461.)

" 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) of section 1172.5 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).)"² ( Burgess , supra , 86 Cal.App.5th at p. 380, 302 Cal.Rptr.3d 461.)

"After the trial court receives from the CDCR and county correctional administrator the information included in subdivision (b) of section 1172.5, ‘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 , supra , 86 Cal.App.5th at pp. 380-381, 302 Cal.Rptr.3d 461.)

Procedural History

Escobedo

In 2016 a jury convicted Escobedo of dissuading a witness from testifying in violation of Penal Code section 136.1, subdivision (a)(1). We refer to this conviction as "the 2016 conviction." The trial court found true two prior prison terms within the meaning of former section 667.5(b). He was sentenced to prison for five years – the three-year upper term for dissuading a witness plus a consecutive sentence of one year for each of the two prior prison terms.

At the time of sentencing for the 2016 conviction, Escobedo received credit of 401 days for time served. While serving the remainder of his five-year prison sentence, in September 2017 Escobedo was convicted of possessing a weapon while confined in a penal institution. ( § 4502, subd. (a).) He was sentenced to prison for four years. This sentence was not increased by a prior prison term enhancement. The trial court ordered the four-year sentence to be served consecutively to the five-year sentence he was currently serving for the 2016 conviction. Section 4502, subdivision (a) provides that punishment for a violation of the statute is "to be served consecutively."

Pursuant to section 1172.75, in June 2022 Escobedo filed a petition to be resentenced for the 2016 conviction. He requested that the trial court "strike his two ... [section] 667.5(b) enhancements that are now legally invalid."

Chavira

In 2015 Chavira pleaded guilty to two felonies. We refer to these convictions as "the 2015 convictions." He was sentenced to prison for six years, four months. The sentence included a one-year consecutive term for a prior prison term enhancement pursuant to former section 667.5(b).

At the time of sentencing for the 2015 convictions, Chavira received credit of 449 days for time served. While serving the remainder of his prison sentence, in March 2019 Chavira was convicted of possessing a weapon while confined in a penal institution. ( § 4502, subd. (a).) He was sentenced to prison for four years. The sentence was not increased by a prior prison term enhancement. The trial court ordered the four-year sentence to be served consecutively to the six-year, four-month sentence he was currently serving for the 2015 convictions.

In October 2021 Chavira was convicted of assault by means of force likely to produce great bodily injury. ( § 245, subd. (a)(4).) For this new conviction he was sentenced to prison for four years.

While still imprisoned, in July 2022 Chavira filed a petition "for a full resentencing hearing pursuant to ... section 1172.75." He sought "to strike [from the sentence for his 2015 convictions] his legally invalid Penal Code [section] 667.5(b) enhancement." The petition alleged that if the section 667.5(b) prior is stricken by the trial court, he would be eligible for immediate release. We do not credit this allegation. The math just does not support this claim.

People's Opposition to Petitions and Trial Court's Ruling

The People correctly argued that appellants were not...