Filed 7/19/21 P. v. Williams 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B309281
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. YA093048)
v.
SHON OLIVENTA WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Laura C. Ellison and William C. Ryan, Judges. Dismissed.
Richard B. Lennon, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Shon Oliventa Williams appeals from postconviction orders
summarily denying two petitions for writ of habeas corpus seeking
resentencing under Penal Code section 1170, subdivision (d).1 His
appellate counsel filed a brief asking this court to proceed under People
v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Because the trial
court and this court lack jurisdiction to grant the relief requested by
Williams, we dismiss his appeal.
BACKGROUND AND DISCUSSION
In June 2016, Williams pleaded nolo contendere to one count of
carjacking (§ 215, subd. (a)). He admitted he had suffered two prior
strikes under the Three Strikes law (§§ 667, subds. (b)-(j), 1170.12,
subds. (a)-(d)) for two robbery convictions in 1987 and 1982. Williams
was sentenced in this case to an overall term of 15 years imprisonment
(consisting of the middle term of five years for carjacking, doubled
under the Three Strikes law, plus five years for a prior serious or
violent conviction (§ 667, subd. (a)(1)).
In August 2020, Williams filed a petition for writ of habeas corpus
based on Senate Bill No. 1393 (S.B. 1393), which deleted the restriction
prohibiting a judge from striking serious felony convictions in
connection with the imposition of the five-year enhancement under
subdivision (a)(1) of section 667. (Legis. Counsel’s Dig., Sen. Bill No.
1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013.) In his petition,
1 Subsequent references to statutes are to the Penal Code unless
otherwise indicated. Williams filed a separate notice of appeal from each
order. By prior order of this court, both notices of appeal were consolidated
for all purposes.
2
Williams requested that the trial court resentence him in accordance
with S.B. 1393 and section 1170, subdivision (d)(1), which authorizes
recall of sentence by the trial court within 120 days of the date of
commitment, or at any time upon the recommendation of the Secretary
of the jail or prison in which the defendant is incarcerated, the Board of
Parole Hearings, or the District Attorney of the county in which the
defendant was sentenced. The trial court summarily denied the
petition. Williams filed a notice on November 4, 2020 appealing the
court’s order.
On August 25, 2020, Williams filed a second petition for writ of
habeas corpus seeking the same relief under S.B. 1393 and section
1170, subdivision (d)(1). On November 30, 2020, the trial court denied
the petition after concluding it had no jurisdiction to recall Williams’s
sentence. The court also noted that the sentence was the result of a
plea agreement, the absence of which exposed Williams to a maximum
term of 45 years to life. Williams filed his second appeal from the
November 30, 2020 order.
We appointed appellate counsel for Williams. Citing Serrano,
supra, 211 Cal.App.4th 496, counsel filed an opening brief setting out
the relevant procedural history, and declared that he found no arguable
issues to raise on appeal. Counsel stated he had explained his
evaluation to Williams and informed him of his right to file a
supplemental brief. On March 30, 2021, we advised Williams he had 30
days to file a supplemental brief.
3
Williams submitted two supplemental briefs and a request for
judicial notice.2 His first supplemental brief is in the form of a petition
for writ of mandate in which Williams asserts there will be a
miscarriage of justice if the courts refuse to grant him relief. He
repeats the argument in his second supplemental brief in which he
attached a volume of documents that he asserts meet the criteria for a
recall of sentence under subdivision (d)(1) of section 1170. In both
supplemental briefs, Williams concedes that the courts have no
jurisdiction to rule in his favor at this time.
Williams’s concession is well-taken. “‘“It is settled that the right
of appeal is statutory and that a . . . order is not appealable unless
expressly made so by statute.’”” (Teal v. Superior Court (2014) 60
Cal.4th 595, 598.) And while a postjudgment order affecting a
defendant’s substantial rights is appealable, subject to limited statutory
exceptions, once a judgment has been rendered, a trial court is without
jurisdiction to vacate or modify a sentence. (§ 1237, subd. (b); People v.
Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez); People v.
Fuimaono (2019) 32 Cal.App.5th 132, 135 (Fuimaono).)
2 In his request for judicial notice, Williams asserts that his medical
records establish underlying conditions placing him at high risk of infection
from COVID-19. Williams requests that the District Attorney’s office and
this court consider his medical condition when reviewing the merits of his
petitions.
We decline to take judicial notice of the requested medical records,
which are not subject to judicial notice in this appeal. (See Evid. Code,
§§ 450; 452, subd. (h).)
4
Section 1170, subdivision (d) creates no such statutory exception.
(People v. Loper (2015) 60 Cal.4th 1155, 1165 (Loper) [section 1170,
subdivision (d) does not “[authorize] a prisoner personally to initiate a
sentence recall proceeding in the trial court”]; Fuimaono, supra, 32
Cal.App.5th at p. 134.) Because the trial court lacked jurisdiction to
modify Williams’s sentence, this court lacks jurisdiction to consider its
orders denying his habeas petitions. (Hernandez, supra, 34 Cal.App.5th
at p. 327; Loper, supra, at p. 1166; Fuimaono, supra, at p. 135.)
Therefore, the appeal is dismissed.3
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J. CURREY, J.
3 Our dismissal should not be construed as a limitation on Williams’s
right to seek resentencing should qualifying circumstances under section
1170 arise. (See § 1170, subds. (d)(1) [court may, at any time upon
recommendation of the secretary, Board of Parole Hearings, county
correctional administrator, or county district attorney, recall the sentence
and commitment previously ordered and resentence the defendant to a lower
term of imprisonment], (e)(1)-(11) [recall of sentence may lie for those
suffering from an incurable condition or permanent medical condition causing
incapacitation].)
5