People v. Hernandez

323 Cal.Rptr.3d 614

The PEOPLE, Plaintiff and Respondent,

v.Daniel HERNANDEZ, Defendant and Appellant.

F086665

Court of Appeal, Fifth District.

Filed July 25, 2024

APPEAL from an order of the Superior Court of Tulare County, Antonio Reyes, Judge. (Super. Ct. No. VCF170418A)

Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PEÑA, J.

INTRODUCTION

In 2008, a jury convicted defendant Daniel Hernandez of multiple counts of discharging a firearm from a motor vehicle at another person (Pen. Code, former § 12034, subd. (c); counts 4, 5 & 6), but acquitted him of murder (§ 187, subd. (a); count 1) and deadlocked on two attempted murder charges (§§ 664, 187, subd. (a); counts 2 & 3), which were not retried. (Undesignated statutory references are to the Penal Code.) It found true allegations a principal personally and intentionally discharged a firearm causing death during the commission of count 4 (§ 12022.53, subds. (d), (e)(1)); a principal personally discharged a firearm during the commission of counts 5 and 6 (§ 12022.53, subds. (c), (e)(1)); and counts 4, 5, and 6 were committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)).

In August 2022, defendant filed a form petition for resentencing pursuant to for- mer section 1170.95 (now § 1172.6),¹ asserting in part that he was "convicted of murder, attempted murder, or manslaughter following a trial," and he "could not presently be convicted of murder or attempted murder because of changes made to Penal Code §§ 188 and 189." The trial court heard and denied his petition in April 2023, concluding defendant had not been convicted of murder, attempted murder, or manslaughter.

Defendant filed another form petition for resentencing pursuant to section 1172.6 on July 11, 2023, which the court denied that same day in an order stating, "petition heard and denied on 4-27-23." Defendant appeals from the court’s July 11, 2023, order.

On appeal, defendant does not challenge the court’s denial of his petition for failing to establish a prima facie case for relief. Instead, for the first time ever, defendant challenges his original sentence, arguing it was unauthorized because the court imposed and executed a full-term consecutive sentence rather than one-third of the middle term for the subordinate term in violation of section 1170.1, subdivision (a). He asks us to remand the matter for the court to designate a principal term and to proceed with a full resentencing that includes sentencing defendant under section 1170.1 on the remaining counts and enhancements. The People respond the trial court had no jurisdiction to consider defendant’s claim. Rather, because the court denied defendant’s section 1172.6 petition, it lacked jurisdiction to modify the sentence. Nevertheless, they agree the imposed sentence was unauthorized but argue the court must have jurisdiction over the judgment at issue in order to correct it.

We conclude jurisdiction to consider the unauthorized sentence claim is lacking in this appeal. Because defendant does not challenge the appealed-from order denying his petition for resentencing under section 1172.6, we dismiss the appeal in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with murder committed by an active participant in a criminal street gang and carried out to further the activities of the gang, and perpetrated by means of discharging a firearm from a motor vehicle (§§ 187, subd. (a), 190.2, subd. (a)(21), (22); count 1), attempted premeditated murder (§§ 664, 187, subd. (a); counts 2 & 3), and discharging a firearm from a motor vehicle at another person (former § 12034, subd. (c)). In 2008, a jury convicted him of multiple counts of discharging a firearm from a motor vehicle at another person (counts 4, 5 & 6), but acquitted him of murder (count 1) and deadlocked on the attempted murder charges (counts 2 & 3), which were not retried. It found true allegations a principal personally and intentionally discharged a firearm causing death during the commission of count 4 (§ 12022.53, subds. (d), (e)(1)); a principal personally discharged a firearm during the commission of counts 5 and 6 (§ 12022.53, subds. (c), (e)(1)); and counts 4, 5, and 6 were committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)).

The court sentenced defendant to the middle term of five years on count 4 plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement; the middle term of five years on count 5 plus five years for the section 186.22, subdivi- sion (b)(1)(C) enhancement; and one year eight months (one-third the middle term) on count 6 plus one year eight months (one-third the middle term) for the section 186.22, subdivision (b)(1)(C) enhancement.

Defendant appealed and the judgment was affirmed on February 18, 2010, in People v. Hernandez (2010) 181 Cal. App.4th 1494, 105 Cal.Rptr.3d 597. On our own motion, we take judicial notice of our prior partially published opinion in People v. Hernandez (Feb. 18, 2010, F056015) and the record in that case. (Evid. Code, §§ 452, subd. (d), 459.) In that appeal, we rejected defendant’s claims of instructional error, his challenges to the sufficiency of the evidence in support of his convictions, his contention his due process rights were violated during sentencing because he was unable to make a statement without being subject to cross-examination, and his argument that his sentence constituted cruel and unusual punishment under the state and federal Constitutions. Notably, defendant did not allege the sentence was unauthorized in that appeal, and the alleged unauthorized sentence was not otherwise considered at that time.

In August 2022, defendant filed a form petition for resentencing pursuant to section 1172.6 asserting in part he was "convicted of murder, attempted murder, or manslaughter following a trial," and he "could not presently be convicted of murder or attempted murder because of changes made to Penal Code §§ 188 and 189." Defendant filed another identical form petition for resentencing under section 1172.6 on March 1, 2023. On March 3, 2023, the People filed an "Opposition to Application of Penal Code Sections 1170.95/1172.6," asserting defendant was ineligible for relief as a matter of law because he was found guilty of shooting from a motor vehicle, not murder, attempted murder, or manslaughter. The trial court heard and denied defendant’s section 1172.6 petition on April 27, 2023, concluding defendant had not been convicted of murder, manslaughter, or attempted murder.

Defendant filed another form petition for resentencing pursuant to section 1172.6 on July 11, 2023, which the court denied that same day in an order stating, "petition heard and denied on 4-27-23." The trial court sent defendant a letter dated July 17, 2023, that stated it reviewed his letter dated July 11, 2023, "and makes the following orders: [¶] … [¶] Your request has been DENIED."² Defendant appeals from the court’s July 11, 2023, order,

DISCUSSION

Despite filing a notice of appeal from the July 11, 2023, order on his section 1172.6 petition for resentencing, defendant does not challenge the validity of the court’s denial of his section 1172.6 petition. Defendant instead contends the matter should be remanded for resentencing because his original sentence was unauthorized (in violation of § 1170.1, subd. (a)) because the court imposed and executed a full-term consecutive sentence rather than one-third of the middle term for the subordinate term. He asserts the trial court must look at the sentence of the base term, not an enhancement, to decide whether a term of imprisonment is determinate or indeterminate—citing People v. Montes (2003) 31 Cal.4th 350, 2 Cal.Rptr.3d 621, 73 P.3d 489³ for the proposition the indeterminate enhancement did not merge with the determinate offense in count 4 to make the entire term encompassed by the indeterminate sentencing law. And here, the sentences for all the base terms are determinate and subject to section 1170.1.⁴ He asks us to remand the matter for the court to designate a principal term and to proceed with a full resentencing that includes sentencing defendant under section 1170.1 on the remaining counts and enhancements. He contends we cannot simply correct the unauthorized portion of the sentence because there are multiple counts and discretionary decisions at play that the trial court should be entitled to consider. He further asserts the instant appeal renders the judgment not final and, at resentencing, the court should consider ameliorative legislation: specifically, the changes to section 1170 that favor imposition of a lower term sentence when certain criteria are present, such as youth. He also asserts the court should strike enhancements beyond a single enhancement in furtherance of justice pursuant to amended section 1385, subdivision (c)(2).

The People respond the trial court has no jurisdiction to consider defendant’s claim, Rather, because the court denied defendants section 1172.6 petition, it lacked jurisdiction to modify the sentence, Nevertheless, they agree the imposed sentence was unauthorized but argue the court must have jurisdiction over the judgment at issue in order to correct it. They also contend defendant appeals from the denial of his July 2023 petition, which was substantially identical to a previously denied petition for which the time to appeal has long passed. They assert defendant’s contention regarding an unauthorized sentence is wholly unrelated to the denial of his section 1172.6 petition for resentencing, could not have been raised as part of the proceeding below,...