Filed 5/19/22 P. v. Castro CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B316042
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA086356)
v.
ERNESTO MARIO CASTRO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David W. Stuart, Judge. Dismissed.
Cheryl Lutz, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Defendant Ernesto Mario Castro appeals from an order
denying his motion to recall his sentence and resentence him
pursuant to Penal Code1 section 1170, subdivision (d). Because
the order is nonappealable, we dismiss the appeal.
BACKGROUND
On August 16, 2016, the People charged defendant with
two counts of robbery, shooting at an occupied vehicle, carrying a
concealed firearm, and two counts of burglary. With respect to
both robberies, the People alleged defendant personally used a
firearm within the meaning of section 12022.53, subdivisions (c)
and (b).
On February 21, 2017, defendant pleaded no contest to one
count of robbery and to shooting at an occupied vehicle.
Defendant also admitted the section 12022.53, subdivision (b)
enhancement. A plea form indicates that the parties agreed to a
13-year sentence, and the trial court imposed a 13-year sentence,
consisting of three years for the robbery and 10 years for the
section 12022.53 enhancement. The court ordered a three-year
sentence for shooting at an occupied vehicle to run concurrently.
The court dismissed the remaining counts.
On September 21, 2021, defendant filed a motion to recall
his sentence pursuant to section 1170, subdivision (d). Defendant
requested the trial court strike the section 12022.53, subdivision
(b) enhancement. The trial court denied the motion concluding it
had no jurisdiction over the matter. In his notice of appeal,
defendant argued that he “has a right to file [a section] 1170(d)(1)
1 All statutory citations are to the Penal Code.
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motion to ask [the] trial judge for retroact[ive] relief to end
racism in sentencing.”
Appellate counsel filed a brief pursuant to People v.
Serrano (2012) 211 Cal.App.4th 496 (Serrano) identifying no
issues. Defendant filed a supplemental brief, stating that he did
not want his attorney to file a Serrano brief, but instead wanted
her to file a brief pursuant to People v. Wende (1979) 25 Cal.3d
436. Defendant mentioned that he was seeking racial equity in
sentencing and that his case followed a change in the sentencing
law.
DISCUSSION
When a defendant’s appointed counsel files a brief raising
no issues in an appeal of a denial of postconviction relief, we
follow the procedures set forth in Serrano, supra,
211 Cal.App.4th 496. We are not obligated to review the record
independently to determine whether there are any arguable
issues on appeal. (People v. Cole (2020) 52 Cal.App.5th 1023,
1039, review granted Oct. 14, 2020, S264278.) The defendant has
a right, however, to file a supplemental brief. (Ibid.) If the
defendant files a supplemental brief, we evaluate the arguments
on the merits. (Id., at pp. 1039–1040, review granted.)
When defendant filed and the trial court denied defendant’s
motion to recall his sentence, the applicable law did not give
defendant standing to file such a motion. (People v. Chlad (1992)
6 Cal.App.4th 1719, 1725–1726.) Additionally, the trial court had
no jurisdiction because defendant filed his motion more than
120 days after the date of commitment. (People v. Loper (2015)
60 Cal.4th 1155, 1165 [“section 1170(d) provides that the trial
court loses jurisdiction to resentence on its own motion after
120 days has elapsed”].) The trial court’s order denying a
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section 1170, subdivision (d) motion is not appealable. (People v.
Loper (2015) 60 Cal.4th 1155,1165–1666; Chlad, supra,
6 Cal.App.4th at pp. 1725–1726.) Because this is an appeal from
a nonappealable order, we dismiss the appeal for lack of
jurisdiction. (People v. Durham (1969) 70 Cal.2d 171, 176, fn. 1.)
Although the Legislature amended section 1170,
subdivision (d) effective January 1, 2022, the amendment
does not apply to defendant. It permits a trial court to consider a
petition for resentencing filed by a defendant, who was under
18 years at the time of the commission of the offense and
sentenced to prison for life without the possibility of parole.2
Defendant was 20 years old when he committed the offense and
was not sentenced to life without the possibility of parole.
Defendant also did not base his motion to recall his sentence on
these grounds.
On the merits, defendant’s supplemental appellate brief
identifies no cognizable issue. Defendant identifies no change in
the sentencing law applicable to him. The fact that defendant
did not want his attorney to file a Serrano brief demonstrates
neither error in the trial court’s denial of his motion to recall his
sentence nor that the challenged order is appealable.
2 Section 1170, subdivision (d)(1)(A) currently provides:
“When a defendant who was under 18 years of age at the time of
the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of
parole has been incarcerated for at least 15 years, the defendant
may submit to the sentencing court a petition for recall and
resentencing.”
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
MORI, J.*
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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