People v. Alonzo CA2/3

Filed 10/21/20 P. v. Alonzo CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B296059

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA321933)
v.

GONZALO ALONZO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Curtis B. Rappe, Judge. Appeal dismissed.
Alan Siraco, 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, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
 Defendant and appellant Gonzalo Alonzo appeals the trial
court’s order denying his request to modify his sentence by
striking a Penal Code section 12022.53, subdivision (d),1 firearm
enhancement pursuant to Senate Bill No. 620 (2017–2018 Reg.
Sess.) (Senate Bill 620). Because Alonzo’s judgment was final
before passage of Senate Bill 620, the trial court lacked
jurisdiction to entertain his motion, and its order is not
appealable. Accordingly, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND2
In 2007, in a gang-related incident, 17-year-old Alonzo fired
multiple shots at a group of men standing in front of a house.
One shot hit one of the men, who was treated at a hospital but
survived. A jury convicted Alonzo of four counts of willful,
deliberate, and premeditated attempted murder (§§ 664, 187,
subd. (a)), four counts of assault with a firearm (§ 245), and one
count of shooting at an inhabited dwelling (§ 246). It further
found true street gang and firearm enhancements, including that
Alonzo personally used a firearm and inflicted great bodily injury
on the victim, and that a principal was armed. (§§ 186.22,

1
All further undesignated statutory references are to the
Penal Code.

2
As the People request, we take judicial notice of the record
in Los Angeles County Superior Court case No. BA321933,
including our prior nonpublished opinions. (People v. Alonzo
(Sep. 27, 2012, B217909); People v. Alonzo (Jan. 29, 2016,
B248995); People v. Alonzo (Nov. 30, 2016, B248995; Evid. Code,
§§ 452, subd. (d), 459.) Because the evidentiary details
underlying Alonzo’s offenses are not relevant to our disposition of
his appeal, we only briefly summarize them here.

2
12022.5, 12022.7, 12022.53, subds. (c), (d), (e)(1).) The trial court
sentenced Alonzo to 160 years to life in prison.
In an opinion issued on September 27, 2012 (Alonzo I,
B217909), we affirmed Alonzo’s convictions but concluded his
sentence—which was the functional equivalent of life without the
possibility of parole—amounted to cruel and unusual
punishment, in light of Roper v. Simmons (2005) 543 U.S. 551,
Graham v. Florida (2010) 560 U.S. 48, and People v. Caballero
(2012) 55 Cal.4th 262. Accordingly, we vacated Alonzo’s sentence
and remanded for resentencing.
On remand, in April 2013, the trial court imposed a
sentence of 40 years to life, comprised of 15 years to life on count
1, attempted murder, and a 25-years-to-life enhancement
pursuant to section 12022.53, subdivision (d).3
Alonzo again appealed, contending the trial court abused
its discretion by denying his request for a continuance of the
sentencing hearing, his counsel provided ineffective assistance,
and the new sentence amounted to cruel or unusual punishment.
We rejected these contentions and affirmed the judgment in an
opinion issued on January 29, 2016. (Alonzo II, B248995.)
Thereafter the California Supreme Court granted review in
Alonzo II, with further action deferred pending its decision in
People v. Franklin (2016) 63 Cal.4th 261 (Franklin). On August
17, 2016, the court transferred Alonzo II back to us with
directions to vacate our opinion and reconsider the cause in light
of Franklin. In an opinion issued on November 30, 2016, we
vacated our prior opinion and again affirmed Alonzo’s convictions

3
The court imposed concurrent sentences on the other
attempted murder charges. Sentence on the section 245 and 246
convictions was stayed pursuant to section 654.

3
and sentence. (Alonzo III.) We remanded to the trial court with
directions to determine whether Alonzo was “given an adequate
opportunity to make a sufficient record of his juvenile
characteristics and circumstances at the time of his offense as set
forth in Franklin. If the trial court finds he was not, then both
parties shall be given the opportunity to make such a record.”
The remittitur issued on March 13, 2017.
In 2017, the Legislature enacted Senate Bill 620, which
took effect on January 1, 2018. (People v. Harris (2018) 22
Cal.App.5th 657, 660; People v. Watts (2018) 22 Cal.App.5th 102,
119.) That legislation amended sections 12022.53, subdivision (h)
and 12022.5, subdivision (c) to give trial courts authority to strike
or dismiss firearm enhancements in the interest of justice.
(Stats. 2017, ch. 682, §§ 1, 2.) Prior to Senate Bill 620’s
enactment, imposition of these firearm enhancements was
mandatory. (People v. Zamora (2019) 35 Cal.App.5th 200, 206–
207.) As amended, section 12022.53, subdivision (h) provides:
“The court may, in the interest of justice pursuant to Section
1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.
The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” Section
12022.5, subdivision (c) contains the same language.
Alonzo’s Franklin hearing was continued several times,
either at defense counsel’s request or by stipulation of the
parties, in part so that Alonzo could be evaluated by a mental
health professional. It eventually transpired on August 22, 2018.
On September 19, 2018, Alonzo filed a motion seeking
dismissal of the section 12022.5 and 12022.53 firearm
enhancements, pursuant to Senate Bill 620. Attached as an

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exhibit to the motion was a “Psychosocial Life History” prepared
by a licensed clinical social worker. Defense counsel
acknowledged that Alonzo’s “case would not qualify as a case ‘not
yet final on appeal’ under” In re Estrada (1965) 63 Cal.2d 740,
745. The People opposed the motion.
On February 22, 2019, the trial court denied the motion.
It explained: “This is an unusual case. It arose . . . between
Caballero and Franklin, and in the interim the court reduced the
sentence from 160 to life to 40 to life. So he’s already gotten a
considerable break on the original sentence. [¶] But even beyond
that, this is a case where he and a cohort went into rival
territory, shot four or five times at people sitting on a porch, or
steps. And I see nothing about the use of a gun that requires the
court to use its discretion in favor of striking the allegation.” The
court confirmed it believed it had discretion to strike the
enhancements, but explained, “I have to look at the big picture,
and I don’t see that striking the priors [sic] would do justice. I
mean, because I ran the sentence concurrent after the Caballero
reversal on this issue. [¶] So it seems to me I don’t have much
option as far as the sentence.”
Alonzo appeals the court’s order.
DISCUSSION
Alonzo contends the denial of his motion was an abuse of
discretion because the trial court improperly focused on
“irrelevant facts and inapplicable legal principles.” He asserts
that the fact his sentence was reduced after the initial remand—
a modification required by the Eighth Amendment—was not a
valid consideration; the denial could not be based on the fact of
his gun use alone; the court failed to expressly consider the

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psychosocial report; and it “did not think it could strike the gun
use enhancements.”
We sought additional briefing from the parties regarding
whether the trial court had jurisdiction to consider the motion
and whether the appeal should be dismissed. Alonzo filed a letter
brief asserting that the court did have jurisdiction, and the order
was appealable. The People declined to file a supplemental brief.
The Appeal Must Be Dismissed
Contrary to Alonzo’s contention, the order in question is not
appealable. “Generally, 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.” (People v. Torres
(2020) 44 Cal.App.5th 1081, 1084; People v. Karaman (1992) 4
Cal.4th 335, 344; People v. Hernandez (2019) 34 Cal.App.5th 323,
326; People v. Turrin (2009) 176 Cal.App.4th 1200, 1204.) “If 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. [Citations.]” (People v. Torres, at p. 1084; People v.
Fuimaono (2019) 32 Cal.App.5th 132, 135 [dismissing appeal of
order denying Senate Bill 620 relief where judgment was final];
People v. Hernandez, at p. 327 [same].)
Here, we affirmed Alonzo’s judgment, including his
sentence, in November 2016. The California Supreme Court
denied Alonzo’s petition for review on February 22, 2017. The
remittitur issued on March 13, 2017. It does not appear that
Alonzo filed a petition for writ of certiorari in the United States
Supreme Court. (See People v. Vieira (2005) 35 Cal.4th 264, 306
[judgment is final after time for petitioning for writ of certiorari
in the United States Supreme Court has passed]; People v.

6
Johnson (2019) 32 Cal.App.5th 938, 942; U.S. Supreme Ct. Rules,
rule 13 [petition for certiorari must be filed within 90 days after
denial of discretionary review].) Senate Bill 620 did not take
effect until January 1, 2018.
Thus, the judgment was final before Senate Bill 620’s
effective date. The trial court accordingly lacked jurisdiction to
consider it. The order denying the motion is not appealable, and
the appeal must be dismissed. (People v. Fuimaono, supra, 32
Cal.App.5th at p. 135; People v. Hernandez, supra, 34
Cal.App.5th at pp. 326–237; People v. Johnson, supra, 32
Cal.App.5th at p. 941.)
a. Senate Bill 620 changes, rather than clarifies, the
law
Alonzo makes a variety of arguments aimed at defeating
this conclusion, but none is persuasive. First, he argues that
Senate Bill 620 “does not implicate retrospective application of a
new law,” but “merely clarified discretion that had always been
otherwise available.” He is incorrect. “As a general rule, statutes
do not operate retroactively ‘unless the Legislature plainly
intended them to do so.’ [Citation.] Nonetheless, ‘a statute that
merely clarifies, rather than changes, existing law does not
operate retrospectively even if applied to transactions predating
its enactment.’ [Citation.] Such a statute ‘may be applied to
transactions predating its enactment without being considered
retroactive’ because it ‘is merely a statement of what the law has
always been.’ [Citation.]” (In re Marriage of Fellows (2006) 39
Cal.4th 179, 183, fn. omitted; Western Security Bank v. Superior
Court (1997) 15 Cal.4th 232, 243.)
Senate Bill 620 did not merely clarify existing law; it
changed it. Prior to Senate Bill 620’s passage, imposition of

7
section 12022.53 and 12022.5 firearm enhancements was
mandatory, and trial courts lacked discretion to strike them.
(See People v. Franklin, supra, 63 Cal.4th at p. 273; People v.
Thomas (1992) 4 Cal.4th 206, 213–214; People v. Thompkins
(2020) 50 Cal.App.5th 365, 388; People v. Arredondo (2018) 21
Cal.App.5th 493, 506 (Arredondo) [under prior version of the law,
“the trial court had no power to strike” firearm enhancement].)
Former section 12022.5, subdivision (c) and former section
12022.53, subdivision (h) provided, “Notwithstanding Section
1385 or any other provisions of law, the court shall not strike an
allegation under this section or a finding bringing a person
within the provisions of this section.” (See Stats. 2010, ch. 711,
§ 5; Stats. 2011, ch. 39, § 60.) The Legislative Counsel’s Digest
for Senate Bill 620 states: “Existing law prohibits the court from
striking an allegation or finding that would make a crime
punishable pursuant to these provisions. [¶] This bill would
delete the prohibition on striking an allegation or finding and,
instead, would allow a court, in the interest of justice and at the
time of sentencing or resentencing, to strike or dismiss an
enhancement otherwise required to be imposed by the above
provisions of law.” (Italics added.) It is patently clear that
Senate Bill 620 did not simply clarify existing law, as Alonzo
contends.
In any event, even if Alonzo were correct on this point, he
does not explain how this would matter: the trial court would
still have lacked jurisdiction to consider the motion because the
judgment was final.
b. Senate Bill 620 does not apply to final judgments
Next, Alonzo contends that Senate Bill 620 “should be
regarded as fully retroactive regardless of finality.” He is again

8
incorrect. “When the Legislature amends a statute so as to
lessen the punishment it has obviously expressly determined that
its former penalty was too severe and that a lighter punishment
is proper as punishment for the commission of the prohibited act.
It is an inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to which it
constitutionally could apply. The amendatory act imposing the
lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting the
defendant of the act is not final.” (In re Estrada, supra, 63 Cal.2d
at p. 745, italics added; see also People v. Brown (2012) 54
Cal.4th 314, 323 [court assumes Legislature intends ameliorative
statutes to apply to “all defendants whose judgments are not yet
final on the statute’s operative date,” italics added]; People v.
Martinez (2018) 4 Cal.5th 647, 655 [absent an express
retroactivity provision or extrinsic sources showing intent that
law apply retroactively, “ameliorative legislation does not affect
convictions that have become final.”].)
In accordance with these principles, the amendments made
by Senate Bill 620 apply only to cases that were not final when
the legislation took effect. Senate Bill 620 “does not
automatically trigger resentencing for a prisoner who was
previously found to have used a firearm in the commission of a
felony. The Legislature has expressly limited the reach of newly
enacted Penal Code section 12022.53, subdivision (h). A
defendant serving a sentence pursuant to a ‘final’ judgment, who
asks for such relief, should receive a ‘summary denial.’ ” (People
v. Johnson, supra, 32 Cal.App.5th at p. 940, fn. omitted
[dismissing appeal from denial of resentencing request].)

9
Numerous courts have so held. (See, e.g., People v. Hargis (2019)
33 Cal.App.5th 199, 209 [“Because defendant’s judgment was
final before the amendment went into effect, his case does not fall
within Estrada’s qualification to the ordinary presumption that
statutes operate prospectively.”]; People v. Hernandez, supra, 34
Cal.App.5th at p. 326 [Senate Bill 620 “does not apply
retroactivity to cases that became final”]; People v. Fuimaono,
supra, 32 Cal.App.5th at p. 135 [Senate Bill 620 “does not contain
language authorizing resentencing of convictions after they
became final”]; People v. Harris, supra, 22 Cal.App.5th at
p. 659.) The Legislature could have, but did not, provide a
specific procedure for reopening final cases for resentencing, as it
or the electorate have done in regard to other ameliorative
legislation. (People v. Harris, at p. 662; see § 1170.126; § 1170.18;
§ 1170.95.)
Arredondo, supra, 21 Cal.App.5th 493, cited by Alonzo, does
not hold a case’s finality is “immaterial to jurisdiction,” as he
suggests. In Arredondo, the court reversed a gang enhancement
due to prosecutorial misconduct during argument, and remanded
for further proceedings. (Id. at pp. 496, 508–509.) During the
pendency of Arredondo’s appeal, Senate Bill 620 took effect.
Arredondo observed that “a statute which lessens the penalty for
a crime gives rise to an inference the Legislature intended the
change to apply to all nonfinal cases.” (Id. at p. 507, italics
added.) Accordingly, Arredondo also reversed the firearm
enhancement and directed the court, on remand, to exercise its
sentencing discretion under the new law. (Id. at p. 506.)
The court explained: “section 12022.53, subdivision (h)
states that ‘[t]he authority provided by this subdivision applies to
any resentencing that may occur pursuant to any other law.’

10
(Italics added.) By its express terms, this provision extends the
benefits of Senate Bill 620 to defendants who have exhausted
their rights to appeal and for whom a judgment of conviction has
been entered but who have obtained collateral relief by way of a
state or federal habeas corpus proceeding. We interpret this
extension of Senate Bill 620 as an expression by the Legislature
of its understanding that it would also be applied to all cases
which were not final at the time it became effective. It is difficult
to perceive a rationale for giving relief to a defendant whose
judgment might be several years old but who was a successful
habeas corpus litigant and provide no relief to a defendant whose
conviction was entered in a trial court as recently as December
29, 2017. [¶] . . . [T]he Legislature, in enacting Senate Bill 620
has made it clear it intended and expected that its provisions
would be applied to all cases pending at the time it became
effective and thus it is outside the general rule” that statutes
operate only prospectively. (Arredondo, supra, 21 Cal.App.5th at
p. 507, some italics added.)
Alonzo’s appeal was not pending when Senate Bill 620
became effective, nor has he obtained relief in a habeas
proceeding. Arredondo does not support his argument.
c. Pendency of the Franklin hearing does not affect
finality
Next, Alonzo argues that the court had jurisdiction because
his case was not final for “Estrada purposes.” He argues that the
Franklin hearing, which he characterizes as a “sentencing
proceeding,” was pending when Senate Bill 620 became effective;
and “[a]s long as the defendant is before the court ‘pursuant to
any other law’ related to a sentencing proceeding, the court is
authorized to exercise discretion to strike the enhancement.”

11
 That, however, is not what section 12022.53, subdivision (h)
or section 12022.5, subdivision (c), states. The sentence Alonzo
partially quotes reads in full: “The authority provided by this
subdivision applies to any resentencing that may occur pursuant
to any other law.” (Italics added.) (See People v. Hernandez,
supra, 34 Cal.App.5th at p. 326 [because defendant had not been
resentenced pursuant to any other law, Senate Bill 620 was
inapplicable].) A Franklin hearing is not a sentencing or
resentencing proceeding. Instead, it simply provides “an
opportunity for evidence preservation.” (In re Cook (2019) 7
Cal.5th 439, 459.) The “purpose of the proceeding [is] to allow the
offender to assemble evidence ‘at or near the time of the juvenile’s
offense rather than decades later when memories have faded,
records may have been lost or destroyed, or family or community
members may have relocated or passed away.’ ” (Ibid.; People v.
Franklin, supra, 63 Cal.4th at p. 284.) Significantly, a “Franklin
hearing does not affect the judgment . . . .” (People v. Hargis,
supra, 33 Cal.App.5th at p. 208.) “A Franklin proceeding is
unrelated to the validity of the defendant’s sentence. Neither the
entitlement to a youth offender parole hearing, nor the evidence
preservation process ‘disturb[s] the finality of state convictions.’
[Citation.]” (In re Cook, at p. 451.)4

4
Alonzo contends In re Cook misquoted Montgomery v.
Louisiana (2016) __ U.S. __ [136 S.Ct. 718, 736], in that
Montgomery did not rule on the finality of a judgment or the
availability of postjudgment relief. This attempt to distinguish
Cook is not persuasive. The Cook court expressly stated that a
Franklin hearing does not impact a case’s finality. That
statement is binding on this court. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)

12
 People v. McKenzie (2020) 9 Cal.5th 40, does not support
Alonzo’s argument and, as he acknowledges, is not directly
applicable. Alonzo’s contention that “[f]inality for purposes of
Estrada must be construed to permit as broad an application of
the ameliorative amendment as is constitutionally possible” does
not assist him. As set forth above, Estrada has already defined
that constitutional limit: “The amendatory act imposing the
lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting
the defendant of the act is not final.” (In re Estrada, supra,
63 Cal.2d at p. 745.)

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 DISPOSITION
The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

DHANIDINA, J.

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