Filed 7/29/21 P. v. Alvarez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B310307
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA140624
v.
JEREMY ALVAREZ et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Roger Ito, Judge. Dismissed.
Edward Mahler, under appointment by the Court of
Appeal, for Defendant and Appellant Jeremy Alvarez.
William G. Holzer, under appointment by the Court of
Appeal, for Defendant and Appellant Steven Knott.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendants Jeremy Alvarez and Steven Knott appeal the
trial court’s orders denying their motions for resentencing under
Penal Code1 section 1170, subdivision (d) to enable them to obtain
the benefits of the District Attorney’s new charging and
resentencing policies. After independently reviewing the record
we conclude the challenged orders are not appealable and dismiss
the appeals.
BACKGROUND
1. Pleas and Sentencing
In October 2017, Alvarez and Knott were charged with
numerous counts and related gang and firearm enhancements.
They faced sentences of up to 275 years to life. On the first day of
jury selection, March 16, 2020, both defendants entered into plea
agreements and pled guilty to several counts and admitted gang
and firearm enhancements in return for a stipulated aggregate
sentence of 30 years to life for Alvarez, and 50 years to life for
Knott. Both defendants also waived and gave up their appellate
rights and their ability to challenge their pleas and sentences.
On September 25, 2020, the court sentenced Alvarez to 15
years to life for the count 1 murder conviction, plus additional
consecutive terms of five years for the count 6 robbery conviction
and 10 years for the section 12022.53, subdivision (b) firearm
enhancement. The court sentenced Knott to 25 years to life for
the count 1 murder conviction plus an additional consecutive
term of 25 years to life for the section 12022.53, subdivision (d)
1 All undesignated statutory references are to the Penal Code.
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firearm enhancement. The court imposed concurrent terms on
the remaining counts. On April 16, 2021, the court corrected
errors in defendants’ original sentences to reflect the parties’ plea
agreements. The corrections were not substantive and both
defendants, through their counsel, agreed to the changes.
2. The Section 1170, subdivision (d) Motions and Appeals
On December 28, 2020, Alvarez moved under section 1170,
subdivision (d) to strike the section 12022.53, subdivision (b)
firearm enhancement imposed with his count 6 robbery
conviction. Alvarez argued the court had the authority to
resentence him and should do so because, effective December 8,
2020, District Attorney George Gascon adopted new charging and
resentencing polices. On January 8, 2021, Knott filed a joinder to
Alvarez’s request as it pertained to Knott’s section 12022.53,
subdivision (d) firearm enhancement imposed with his count 1
murder conviction.
On January 12, 2021, the court summarily denied both
motions. In its minute orders, the court explained that relief
under section 1170, subdivision (d) could only be sought by the
court on its own motion, the District Attorney, the Secretary of
the Board of Parole Hearings, or the County Correctional
Administrator. Alvarez requested and received a certificate of
probable cause allowing him to challenge the court’s ruling on
appeal. Knott did not request or receive a certificate of probable
cause.
Defendants filed timely notices of appeal and we appointed
counsel to represent them. Appointed counsel filed briefs in which
they raised no issues and asked us to asked us to review the
record independently under People v. Wende (1979) 25 Cal.3d
436. We notified defendants that their attorneys had filed briefs
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that raised no issues and that they could submit by brief or letter
any grounds for an appeal, or contentions or arguments they
wished this court to consider. To date, we have not received a
response from either defendant.
DISCUSSION
“ ‘An order made after judgment affecting a defendant’s
substantial rights is appealable. (§ 1237, subd. (b).) However,
once a judgment is rendered, except for limited statutory
exceptions (§§ 1170.126, 1170.18), the sentencing court is without
jurisdiction to vacate or modify the sentence, except pursuant to
the provisions of section 1170, subdivision (d). [Citation.] Section
1170, subdivision (d), allows a sentencing court … to recall and
resentence, subject to the express limitation that the court must
act to recall the sentence within 120 days after committing the
defendant to prison. [Citation.] Indeed, “the court loses ‘own-
motion’ jurisdiction if it fails to recall a sentence within 120 days
of the original commitment.” ’ ” (People v. Hernandez (2019) 34
Cal.App.5th 323, 326 (Hernandez).)
Here, Alvarez and Knott made their motions under the
provision allowing a court to recall a sentence on its own motion
and resentence a defendant within 120 days of the date of
commitment. (§ 1170, subd. (d)(1).) This section also allows
certain parties other than the court to initiate recall and
resentencing proceedings at any time, including the Board of
Parole Hearings, the county correctional administrator, or the
district attorney. (§ 1170, subd. (d)(1).) Section 1170,
subdivision(d)(1), however, does not permit the inmate to move
for recall and resentencing. “Section 1170 subdivision (d) does not
confer standing on a defendant to initiate a motion to recall a
sentence.” (People v. Pritchett (1993) 20 Cal.App.4th 190, 193.)
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“Consequently, the courts have uniformly held that an order
denying a defendant’s request to resentence pursuant to section
1170 subdivision (d) is not appealable as an order affecting the
substantial rights of the party ... because the defendant has no
right to request such an order in the first instance[.]” (Id. at p.
194, italics omitted.) It follows that we lack the authority to
render a decision on the merits of defendants’ claims. (See
Hernandez, supra, 34 Cal.App.5th at p. 326.)
We also note that both defendants waived their appellate
rights in their plea agreements, and appellate waivers contained
within plea agreements are generally enforceable. “Just as a
defendant may affirmatively waive constitutional rights to a jury
trial, to confront and cross-examine witnesses, to the privilege
against self-incrimination, and to counsel as a consequence of a
negotiated plea agreement, so also may a defendant waive the
right to appeal as part of the agreement.” (People v.
Panizzon (1996) 13 Cal.4th 68, 80.) “The benefits of a plea
agreement would be eliminated if courts disallowed the waiver of
the right of appeal to which the parties have agreed. [Citation.]”
(People v. Vargas (1993) 13 Cal.App.4th 1653, 1658.) In this case,
Alvarez and Knott clearly waived their right to appeal their
sentences and those waivers extended to their challenges to the
imposition of the firearm enhancements.
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DISPOSITION
We have examined the entire record, and are satisfied
defendants’ appellate counsel have fully complied with their
responsibilities and no arguable issues exist in the appeals before
us. (Smith v. Robbins (2000) 528 U.S. 259, 278–284; People v.
Wende, supra, 25 Cal.3d at p. 443.) The appeals are dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
HILL, J.*
* Judgeof the Santa Barbara County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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