Filed 10/20/20 P. v. Castillo CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301408
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A706749)
v.
REFUGIO B. CASTILLO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel B. Feldstern, Judge. Dismissed
Lori A. Quick, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BACKGROUND
In 1988, a jury convicted appellant Refugio Castillo of
kidnapping for ransom (Pen. Code, § 209, subd. (a))1, kidnapping
(§ 207), conspiracy (former § 182, subd. (1)), and two counts of
second degree robbery (§§ 211, 212.5). The jury also found that
appellant used a firearm during the commission of the simple
kidnapping and robberies (§ 12022, subd. (a)). The trial court
imposed a sentence of life without the possibility of parole plus
six years.
At the time appellant was sentenced, a trial court had no
power to strike a firearm enhancement. (See People v. Thomas
(1992) 4 Cal.4th 206, 213.) In October 2017, Senate Bill No. 620
(2017-2018 Reg. Sess.) (SB 620) was enacted; it became effective
on January 1, 2018. (Stats. 2017, ch. 682.) SB 620 gives a trial
court discretion to strike a firearm enhancement under section
12022.5. (§ 12022.5, subd. (c).)
On June 25, 2019, appellant filed a request for
resentencing, citing SB 620. He contended the sentence he
received violated the Eighth Amendment prohibition against
cruel and unusual punishment. The trial court denied the
request on June 28, 2019, noting that the judgment was “final
prior to the January 1, 2018 effective date of SB 620” and
appellant had not shown entitlement to resentencing under any
other law. Appellant appealed. However, under the “prison
delivery rule” approved in In re Jordan (1992) 4 Cal.4th 116, 118-
119, a prisoner’s notice of appeal is deemed timely filed if it is
delivered to prison authorities within the 60-day filing period set
forth in Rule 8.308.
1All further statutory references are to the Penal Code
unless otherwise indicated.
2
Appellant’s appointed counsel filed a brief requesting that
we independently review the record for error pursuant to People
v. Wende (1979) 25 Cal.3d 436 (Wende). We directed counsel to
send the record and a copy of the brief to appellant, and notified
appellant of his right to respond within 30 days. We have
received no response.
DISCUSSION
We dismiss the appeal for two reasons. First, appellant is
not entitled to Wende review. “In an indigent criminal
defendant's first appeal as a matter of right, the Court of Appeal
must independently review the record if appointed counsel
represents he or she has found no arguable issues.”
(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535, citing
Anders v. California (1967) 386 U.S. 738; Wende, supra, 25 Cal.3d
436.) A defendant is not entitled to such review “in subsequent
appeals.” (People v. Serrano (2012) 211 Cal.App.4th 496, 503; see
also People v. Kisling (2015) 239 Cal.App.4th 288, 290.) As this is
an appeal from a petition for resentencing, not a first appeal as a
matter of right, appellant is not entitled to Wende review.
Because neither appellant nor his counsel has raised any claims
of error, we dismiss the appeal as abandoned. (See Serrano,
supra, 211 Cal.App.4th at pp. 503-504; Kisling, supra, 239
Cal.App.4th at p. 292 & fn. 3.)
Second, appellant was convicted and sentenced in 1988,
and the judgment has long been final. SB 620 “does not apply to
final judgments.” (People v. Johnson (2019) 32 Cal.App.5th 938,
941.) “[A]bsent any new authority to resentence defendant under
Senate Bill No. 620, the trial court lacked jurisdiction to grant
defendant's resentencing request.” (People v. Fuimaono (2019) 32
Cal.App.5th 132, 135; see also People v. Hernandez (2019) 34
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Cal.App.5th 323, 326-327.) Because the trial court lacked
jurisdiction to grant the relief appellant requested, its order
denying the motion did not affect appellant’s substantial rights
and is not an appealable postjudgment order. (§ 1237, subd. (b);
People v. Turrin (2009) 176 Cal.App.4th 1200, 1208; Johnson,
supra, 32 Cal.App.5th at p. 941; Hernandez, supra, 34
Cal.App.5th at p. 326.) Thus, “[t]he appeal is ‘irregular’ and will
be dismissed. (§ 1248.)” (Johnson, supra, 32 Cal.App.5th at p.
941; see also Fuimaono, supra, 32 Cal.App.5th at p. 135.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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