Filed 2/18/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B296184
(Super. Ct. No. BA428950)
Plaintiff and Respondent, (Los Angeles County)
v.
RANDOLPH DARIN
ALEXANDER,
Defendant and Appellant.
In recent years, the Legislature has enacted several
new laws that have either rendered formerly mandatory sentence
enhancements discretionary (e.g., Senate Bill No. 1393 (Stats.
2018, ch. 1013, §§ 1, 2) [amending Penal Code1 sections 667 and
1385 to give trial courts discretion to strike prior serious felony
enhancements]; Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2)
[amending sections 12022.5 and 12022.53 to give courts
discretion to strike firearm enhancements]), or restricted the
applicability of enhancements to fewer offenses (e.g., Senate Bill
No. 136 (Stats. 2019, ch. 590, § 1) [amending section 667.5 to
1 All further statutory references are to the Penal Code.
restrict prior prison term enhancements to terms served for
sexually violent offenses]). Courts have determined that these
laws apply retroactively on appeal to nonfinal convictions. (See
People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill
No. 136]; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973
(Garcia) [Senate Bill No. 1393]; People v. Woods (2018) 19
Cal.App.5th 1080, 1089-1091 (Woods) [Senate Bill No. 620].) The
issue presented here is whether Senate Bill No. 1393 (S.B. 1393)
applies to final convictions. We conclude that it does not.
Randolph Darin Alexander appeals from the trial
court’s postjudgment order denying his motion for resentencing
pursuant to S.B. 1393. He contends we should vacate the order
and remand the case to permit the court to exercise its newfound
discretion to strike the four prior serious felony enhancements to
his sentence. We dismiss the appeal.
FACTUAL AND PROCEDURAL HISTORY
In December 2016, Alexander pled no contest to
second degree robbery (§§ 211, 212.5, subd. (c)), and admitted
that he suffered five prior strike convictions (§§ 667, subds. (b)-(j),
1170.12, subds. (a)-(d)) and four prior serious felony convictions
(§ 667, subd. (a)). The trial court struck four of the prior strikes2
and sentenced Alexander to 24 years in state prison: the low
term of two years on the robbery, doubled to four years due to the
remaining strike, and a consecutive 20 years for the four prior
serious felony convictions. Alexander did not appeal from the
judgment.
In February 2019, Alexander moved for resentencing
pursuant to S.B. 1393. The trial court determined that “[Senate
2 SeePeople v. Superior Court (Romero) (1996) 13 Cal.4th
497, 529-530.
2
Bill No.] 620 and the corresponding amendments to the Penal
Code do not apply retroactively to final [convictions] . . . [and
Alexander] has not demonstrated that he is entitled to
resentencing pursuant to some other law.” It accordingly denied
his motion.
DISCUSSION
When the trial court sentenced Alexander, section
667, subdivision (a), required it to add four five-year
enhancements to his sentence for his prior serious felony
convictions. (Garcia, supra, 28 Cal.App.5th at p. 971.) Pursuant
to S.B. 1393, the court now has discretion to strike the
enhancements. (Ibid.) The parties (and we) agree that S.B. 1393
applies retroactively on appeal from the judgment. (Id. at pp.
971-973.) Alexander contends we should remand his case for
resentencing pursuant to the new law. The Attorney General
argues remand is not required because Alexander’s conviction
was final prior to the law’s January 1, 2019, effective date. The
Attorney General is correct.
Though it cited the wrong law, the trial court
correctly concluded that it lacked jurisdiction to grant
Alexander’s motion. (People v. Zapien (1993) 4 Cal.4th 929, 976
[appellate court reviews result, not rationale].) “‘“[A] judgment or
order is not appealable unless expressly made so by statute.”
[Citations.]’ [Citation.]” (People v. Hernandez (2019) 34
Cal.App.5th 323, 326 (Hernandez).) Section 1237, subdivision (b),
makes appealable a court’s postjudgment order if that order
affects a defendant’s substantial rights. An order denying a
motion the court lacks jurisdiction to grant does not affect a
defendant’s substantial rights. (People v. Turrin (2009) 176
Cal.App.4th 1200, 1208 (Turrin).) Any appeal from such an order
3
must be dismissed. (People v. Chlad (1992) 6 Cal.App.4th 1719,
1726-1727 (Chlad).)
Here, Alexander was convicted and sentenced to
prison in December 2016. Because he did not appeal from the
judgment, his conviction became final in February 2017. (In re
Spencer (1965) 63 Cal.2d 400, 405 (Spencer) [conviction final
when “courts can no longer provide a remedy to a defendant on
direct review”]; Cal. Rules of Court, rule 8.308(a) [defendant has
60 days to appeal].) The trial court did not thereafter recall
Alexander’s sentence, nor did he petition for resentencing
pursuant to an applicable statutory scheme. The court therefore
lacked jurisdiction to grant Alexander’s February 2019 motion for
resentencing. (Hernandez, supra, 34 Cal.App.5th at p. 326.) Its
order denying that motion thus could not have affected his
substantial rights. (Turrin, supra, 176 Cal.App.4th at p. 1208.)
The appeal from that order must be dismissed. (Chlad, supra, 6
Cal.App.4th at pp. 1726-1727.)
Citing Woods, supra, 19 Cal.App.5th 1080, Alexander
counters that the trial court did have jurisdiction to modify his
sentence because the Legislature intended that S.B. 1393 apply
retroactively to convictions, like his, that are already final. But
the Woods defendant’s case was on direct appeal (id. at p. 1082)—
i.e., his conviction was not yet final (Spencer, supra, 63 Cal.2d at
p. 405). The Estrada presumption of retroactivity, cited in
Woods, is thus inapplicable here. (Woods, at p. 1090; see In re
Estrada (1965) 63 Cal.2d 740, 745 (Estrada) [ameliorative penal
statute applies to all nonfinal convictions in absence of express
indication to the contrary].)
Conceding that the presumption is not directly
applicable, Alexander points out that the Estrada court also
4
recognized that legislative intent determines whether a statute
applies retroactively. (Estrada, supra, 63 Cal.2d at p. 746.) We
agree. But Alexander cites nothing in S.B. 1393’s legislative
history indicating that the law applies to final convictions.
“No part of [the Penal Code] is retroactive, unless
expressly so declared.” (§ 3.) Thus, “‘in the absence of an express
retroactivity provision[,] or unless it is very clear from extrinsic
sources that the Legislature . . . must have intended a retroactive
application,’ ameliorative legislation does not affect convictions
that have become final. [Citation.]” (People v. Martinez (2018) 4
Cal.5th 647, 655 (Martinez), alterations omitted.) “In applying
this principle, [courts must be] cautious not to infer retroactive
intent from vague phrases and broad, general language in
statutes. [Citations.]” (People v. Brown (2012) 54 Cal.4th 314,
319-320 (Brown).)
Alexander cites three propositions in an analysis of
S.B. 1393 to support his assertion that he is entitled to the
ameliorative effects of the new law: (1) that one of the
Legislature’s purposes in enacting the law was to save money; (2)
that enhancements imposed pursuant to section 667, subdivision
(a), can result in “punishments that are disproportionate to the
offense, which does not serve the interests of justice, public
safety, or communities”; and (3) that S.B. 1393 “restore[s] the
[trial] court’s discretion, in the interest of justice, to strike a five-
year sentence enhancement for each prior serious felony
conviction on a person’s record, when a person is currently
convicted of a serious felony.” (Assem. Com. on Public Safety,
Rep. on Sen. Bill No. 1393 (2017-2018 Reg. Sess.) as amended
May 9, 2018, p. 2.) But these propositions are couched in such
“broad, general language” that we are reluctant to infer any
5
retroactive intent from them. (Brown, supra, 54 Cal.4th at p.
319.) Moreover, though the Legislature was concerned with the
costs of the enhancement, the method by which it chose to reduce
those costs was not to eliminate the enhancement from the Penal
Code outright—which would have garnered even greater fiscal
savings—but to give courts discretion to strike it. That discretion
coincides with the second and third cited purposes of the new
law: helping to ensure that punishments are proportionate to
offenses by giving courts the power to “tailor . . . sentences based
on the facts of the case, the defendant’s history and culpability,
[and] other potential mitigating factors.” (Assem. Com. on Public
Safety, Rep. on Sen. Bill No. 1393 (2017-2018 Reg. Sess.) as
amended May 9, 2018, p. 2.) Additionally, the cost of
resentencing every defendant currently serving a final sentence
that includes a prior serious felony enhancement would be
significant. Applying S.B. 1393 to cases like Alexander’s would
thus offset a significant portion of the Legislature’s hoped-for
savings, frustrating that goal. We therefore conclude that the
cited propositions do not make it “‘very clear . . . that the
Legislature . . . intended a retroactive application’” of S.B. 1393 to
final convictions. (Martinez, supra, 4 Cal.5th at p. 655; accord,
Hernandez, supra, 34 Cal.App.5th at p. 326 [Senate Bill No. 620
does not apply to final convictions]; People v. Johnson (2019) 32
Cal.App.5th 938, 941-942 [same].)
Alternatively, Alexander argues that equal protection
principles compel retroactive application of S.B. 1393 to final
convictions. But “[r]etroactive application of a punishment-
mitigating statute is not a question of constitutional right but of
legislative intent.” (People v. Henderson (1980) 107 Cal.App.3d
475, 488, fn. 5.) “A criminal defendant has no vested interest ‘“in
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a specific term of imprisonment.”’ [Citation.]” (People v. Turnage
(2012) 55 Cal.4th 62, 74.) “[E]qual protection of the law is denied
only where there is no ‘rational relationship between the
disparity of treatment and some legitimate governmental
purpose.’ [Citation.]” (Ibid.) Accordingly, S.B. 1393’s
inapplicability to final convictions will “survive[] constitutional
scrutiny as long as there is ‘“any reasonably conceivable state of
facts that could provide a rational basis for”’” treating final and
nonfinal convictions differently. (Ibid.) Our Supreme Court has
recognized such a basis: “assur[ing] that penal laws will
maintain their desired deterrent effect by carrying out the
original prescribed punishment as written.” (In re Kapperman
(1974) 11 Cal.3d 542, 546.) This helps to “deflect[] any
assumption by offenders that future acts of lenity will necessarily
benefit them.” (People v. Kennedy (2012) 209 Cal.App.4th 385,
398.) Given this basis, the retroactive application of S.B. 1393 to
final convictions is not constitutionally compelled. (People v.
Floyd (2003) 31 Cal.4th 179, 189 [“‘[a] reduction of sentences only
prospectively from the date a new sentencing statute takes effect
is not a denial of equal protection’”]; Baker v. Superior Court
(1984) 35 Cal.3d 663, 668 [“‘[a] refusal to apply a statute
retroactively does not violate the Fourteenth Amendment’”].)
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DISPOSITION
The appeal is dismissed.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
8
Katherine Mader, Judge
Superior Court County of Los Angeles
______________________________
Jenny M. Brandt, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Scott
A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General,
for Plaintiff and Respondent.