Filed 1/31/23 P. v. Stanford CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C096279
Plaintiff and Respondent, (Super. Ct. No. 06F08729)
v.
MURRAY STANFORD,
Defendant and Appellant.
This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d
436. In 2008, a jury convicted defendant Murray Stanford of attempted conspiracy to
transport cocaine base. The trial court sentenced defendant to 25 years to life on the
underlying charge and two additional terms totaling four years for enhancements under
Health and Safety Code, section 11370.2, and Penal Code section 667.5.1 After the law
was changed to render these two enhancements invalid, defendant filed a first petition
asking the trial court to vacate these sentences and resentence him. Defendant then filed
a second petition for resentencing under the Three Strikes Reform Act of 2012 (Prop. 36,
1 Undesignated statutory references are to the Penal Code.
1
as approved by voters, Gen. Elec. (Nov. 6, 2012)) (the Reform Act), section 1170.126.
The trial court denied both of these petitions.
We shall dismiss the appeal from the order seeking to vacate the enhancements for
lack of jurisdiction. Finding no arguable error that would result in a disposition more
favorable to defendant, we will also affirm the order on the petition filed under 1170.126.
FACTUAL AND PROCEDURAL BACKGROUND
The third amended information charged defendant with conspiracy to transport
cocaine base. (§ 182, subd. (a) (1); Health & Saf. Code, § 11352, subd. (a).) It also
alleged an enhancement under Health and Safety Code section 11370.2, subdivision (a).
Separately, the information alleged six additional enhancements under sections 667.5,
subdivision (b), 667, subdivisions (b) through (i), and 1170.12.
The jury convicted defendant of conspiracy to transport cocaine base. (§ 182,
subd. (a) (1); Health & Saf. Code, § 11352, subd. (a). The abstract of judgment explicitly
shows the trial court or jury found true enhancements under Health and Safety Code
section 11370.2, subdivision (a) and section 667.5, subdivision (b). While the appellate
record does not contain the minute order or transcript as to how or which of the seven
pleaded enhancements were found true, our prior opinion in defendant’s original appeal
demonstrates the trial court found all of the pleaded enhancements true. (People v.
Mamaril et al., (May 4, 2009, C058468) [nonpub. opn.].)2 On March 14, 2008, the trial
court sentenced defendant to 25 years to life on the conspiracy count and three years in
state prison for the enhancement under Health and Safety Code, section 11370.2,
subdivision (a), and one year in prison under section 667.5, subdivision (b).
2 On our own motion, we take judicial notice of the record and our opinion affirming the
judgment and conviction in defendant’s direct appeal. (Evid. Code, § 452, subd. (d)
[permitting a court to take judicial notice of records of “any court of this state”].)
2
Defendant filed two petitions in the trial court in February 2022. In the first
petition, defendant argued the enhancements to his sentences were legally invalid under
sections 1172.7 and 1172.753 and sought to be resentenced.
In the second petition, defendant cited the Reform Act, asserting he was entitled to
be resentenced under section 1170.126 because his current conviction was for a
nonviolent and nonserious crime.
The trial court found defendant was not eligible for resentencing and denied both
petitions. As to the first petition, the trial court found defendant was premature in his
request, and as to the second petition, the trial court found defendant had a prior
conviction for attempted murder which made him ineligible for resentencing under
section 1170.126.
Defendant timely appealed.
DISCUSSION
Appointed counsel for defendant filed an opening brief setting forth the facts of
the case and asking this court to review the record and determine whether there are any
arguable issues on appeal in accordance with People v. Wende, supra, 25 Cal.3d 436.
Counsel advised defendant of his right to file a supplemental brief within 30 days from
the date the opening brief was filed. More than 30 days elapsed, and defendant has not
filed a supplemental brief. For the reasons set forth below, defendant’s appeal fails on
both fronts.
A. Lack of Jurisdiction
We start with the petition concerning the enhancements. At the time the trial court
sentenced defendant in 2008, section 667.5, subdivision (b) required trial courts to
3 Defendant cited former sections 1171 and 1171.1 in his petition. Effective June 30,
2022, the Legislature renumbered these sections to sections 1172.7 and 1172.75. (Stats.
2022, ch. 58, §§ 11, 12.) There were no substantive changes to the statute. Throughout
this opinion, we cite to sections 1172.7 and 1172.75 for ease of reference.
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impose a one-year sentence enhancement for each true finding on an allegation the
defendant had served a separate prior prison term and had not remained free from custody
for at least five years. (Former § 667.5, subd. (b).) Similarly, Health and Safety Code
section 11370.2, subdivision (b) required the court to impose a three-year prison sentence
for each prior felony conviction that violates specified Health and Safety Code
provisions. (Former Health & Safety Code, § 11370.2, subd. (b).) These enhancements
became legally invalid pursuant to Senate Bill No. 483 which became effective
January 1, 2022. (Stats. 2021, ch. 728, §§ 2, 3; Stats. 2022, ch. 58, §§ 11, 12 (Senate Bill
No. 483).)
As part of Senate Bill No. 483, the Legislature created a procedural remedy to
remove those legally invalid enhancements in an orderly fashion. Subdivision (b) of
sections 1172.7 and 1172.75 directs the Secretary of the Department of Corrections and
Rehabilitation (CDCR) and the correctional administrator of each county to “identify
those persons in their custody currently serving a term for a judgment that includes an
enhancement . . . and . . . provide the name of each person, along with the person’s date
of birth and the relevant case number or docket number, to the sentencing court that
imposed the enhancement.” (§§ 1172.7, subd. (b), 1172.75, subd. (b).) The statutes
direct CDCR to provide the trial courts with this information in two groups: (1) by
March 1, 2022, “for individuals who have served their base term and any other
enhancements and are currently serving a sentence based on the [affected] enhancement”
(§§ 1172.7, subd. (b)(1), 1172.75 subd. (b)(1)); and (2) by July 1, 2022, “for all other
individuals” (§§ 1172.7, subd. (b)(2), 1172.75, subd. (b)(2)).
After the trial court receives this information, the court is required to “review the
judgment and verify that the current judgment includes a sentencing enhancement
described in subdivision (a),” and if so, “recall the sentence and resentence the
defendant.” (§§ 1172.7, subd. (c), 1172.75, subd. (c).) This part of these sections also
divides the persons entitled to relief into two groups. Specifically, the review and
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resentencing shall be completed “[b]y October 1, 2022, for individuals who have served
their base term and any other enhancement and are currently serving a sentence based on
the [affected] enhancement” (§§ 1172.7, subd. (c)(1), 1172.75, subd. (c)(1)); and “[b]y
December 31, 2023, for all other individuals” (§§ 1172.7, subd. (c)(2), 1172.75, subd.
(c)(2)).
The trial court lacked jurisdiction to decide defendant’s petition prior to receiving
this information from CDCR, and hence this court lacks jurisdiction to consider
defendant’s appeal of the trial court’s order denying that stand-alone petition for
resentencing under these two sections. (People v. Burgess (2022) 86 Cal.App.5th 375,
382.)
In coming to this conclusion, the Burgess court relied on People v. King (2022)
77 Cal.App.5th 629, 634, which stated, “The general rule is that ‘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.’ [Citations.] And, ‘[i]f 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.’ ”
“[A] freestanding motion challenging an incarcerated defendant’s sentence is not a proper
procedural mechanism to seek relief. A motion is not an independent remedy, but must
be attached to some ongoing action. [Citation.] Thus, a defendant who wishes to
challenge a sentence as unlawful after the defendant’s conviction is final and after the
defendant has begun serving the sentence must do more than simply file a motion in the
trial court making an allegation that the sentence is legally infirm.” As a result, the
appellate court in King concluded the trial court had no jurisdiction to entertain the
defendant’s motion to correct his sentence filed more than 30 years after he had begun
serving it, and the appellate court had no appellate jurisdiction over that order. (Id. at
pp. 633-634, 641) Thus, it dismissed the appeal. (Ibid.)
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Here, defendant moved to correct his sentence 15 years after his conviction
became final in 2008. When he filed his motion for resentencing under sections 1172.7
and 1172.75 in 2022, the judgment against him had been final for 14 years. As a result,
the trial court lacked jurisdiction to adjudicate his motion for resentencing, and we lack
jurisdiction over his appeal from the motion’s denial. (People v. Burgess, supra,
86 Cal.App.5th at p. 381; People v. King, supra, 77 Cal.App.5th at p. 634.)
The conclusion defendant is not entitled to bring a stand-alone motion now is
further buttressed by the Legislature’s express creation of the staggered deadlines for
CDCR to identify aggrieved defendants and the trial court’s deadlines to act on that
identification. This carefully structured remedy evinces the Legislature’s purpose to
“minimize the impact on trial courts, while ensuring that those inmates currently serving
time on the invalid enhancements are prioritized for relief, so they do not lose the benefit
of the ameliorative change in the law.” (People v. Burgess, supra, 86 Cal.App.5th at
p. 383.)
Here, the trial court sentenced defendant to 25 years to life commencing in 2008.
He has not yet finished serving that principal term, after which he would be required to
serve the two enhancements at issue in this case. As of the time defendant filed his
motion in February 2022, the CDCR had not yet been required to identify him as a person
subject to this remedial scheme. Further, even as of this writing, the trial court is not
charged with resolving this issue as it has until December 2023 to render a decision as it
relates to defendant. Defendant is assured by the terms of the statute his sentence will be
resolved well before he serves any time for these two enhancements. The trial court had
no jurisdiction to review this premature unauthorized petition, nor do we.
B. Wende Review
As to defendant’s petition for resentencing under section 1170.126, we conclude
the protections afforded by Wende and the United States Supreme Court’s decision in
Anders v. California (1967) 386 U.S. 738, do not apply to an appeal from a
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postconviction denial of his section 1172.126 petition. Because the notice given to
defendant in this case was “suboptimal,” we have elected to independently review the
record and conclude there is no arguable error that would result in a disposition more
favorable to defendant.
While this appeal was pending, the California Supreme Court decided People v.
Delgadillo (2022) 14 Cal.5th 216, 226 (Delgadillo), holding in the context of a motion
for resentencing under section 1172.6, “the procedures set out in Anders and Wende do
not apply to an appeal from the denial of postconviction relief, even if the defendant has a
state-created right to the appointment of counsel for that appeal. [Citations.] This is
because ‘there is no constitutional right to the effective assistance of counsel’ in state
postconviction proceedings. [Citations.]”
Here, similar to the procedure under section 1172.6, the trial court examined the
record and determined defendant was ineligible for resentencing under section 1170.126,
subdivision (e)(3), because he had a conviction for attempted murder. For the same
reasons articulated by our Supreme Court in Delgadillo, we conclude the Wende
protections do not apply to postjudgment appeals of orders issued pursuant to section
1172.126.
Delgadillo provided a framework for resolving appeals in which counsel finds no
arguable issues: “(1) counsel should file a brief informing the court of that
determination, including a concise recitation of the facts bearing on the denial of the
petition; and (2) the court should send, with a copy of counsel’s brief, notice to the
defendant, informing the defendant of the right to file a supplemental letter or brief and
that if no letter or brief is filed within 30 days, the court may dismiss the matter.”
(Delgadillo, supra,14 Cal.5th at pp. 232-233.) If defendant files a brief, we are required
to “evaluate the specific arguments presented in that brief and to issue a written opinion.”
(Ibid.) If defendant does not file a brief, the court may dismiss the appeal, with notice to
defendant. (Id. at p. 232.)
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In Delgadillo, the notice given by counsel and the appellate court advised
defendant that counsel had filed a Wende brief, directed counsel to provide defendant
with the brief and the record, and informed defendant he could file a supplemental brief
within 30 days. (Delgadillo, supra, 14 Cal.5th at pp. 232-233.) It did not inform him the
appeal would be dismissed as abandoned if he did not file a supplemental brief. (Id. at
p. 233.) Although the Supreme Court characterized this notice as “suboptimal,” rather
than reach the merits of whether this notice satisfied due process, the Supreme Court
conducted its own independent review in the interests of judicial economy. (Id. at p. 233
& fn. 6.)
Here, appellate counsel complied with her then-existing obligations to file a brief
informing this court of her determination that there were no arguable issues in this case,
including a concise recitation of the facts bearing on the denial of the petition. Counsel
provided defendant with a copy of the brief, and defendant was advised of his right to file
a supplemental brief, but did not do so. Our facts are identical to Delgadillo in this
regard, and we similarly exercise our discretion to conduct an independent review of the
record. (Delgadillo, supra, 14 Cal.5th at pp. 232-233; see also, People v. Flores (2020)
54 Cal.App.5th 266, 274 [appellate court may independently review the record on appeal
when an indigent defendant’s appointed counsel has filed a Wende brief in a
postjudgment section 1172.6 appeal].) Having undertaken an examination of the entire
record, we find no arguable error that would result in a disposition more favorable to
defendant.
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DISPOSITION
The appeal of the petition under sections 1172.7 and 1172.76 is dismissed. The
portion of the order denying defendant’s section 1170.126 petition is affirmed.
\s\ ,
McADAM, J.*
We concur:
\s\ ,
MAURO, Acting P. J.
\s\ ,
KRAUSE, J.
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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