Filed 2/23/23 P. v. Hill CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A165534
v.
D’VAUGHN CORTEZ HILL, (Solano County
Super. Ct. No. FCR321233)
Defendant and Appellant.
Defendant D’Vaughn Cortez Hill appeals an order denying his petition
for resentencing under former Penal Code section 1170.95.1 We find no error
and affirm.
Background
In December 2017, defendant was convicted of attempted murder in
connection with the shooting of Dennis Keesee, and the jury found true the
allegation that he discharged a gun causing great bodily injury and
personally inflicted great bodily injury on Keesee. Defendant was also
convicted of one count of attempted voluntary manslaughter in the shooting
of a second victim and the jury found true the allegations that he personally
Section 1170.95 of the Penal Code was renumbered as section 1172.6
1
without change in the text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10).
For the sake of simplicity, we refer to the provision by its new numbering.
All further statutory references are to the Penal Code.
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used a firearm and inflicted great bodily injury on that victim. The trial court
sentenced him to a term of three years four months in prison consecutive to
32 years to life. He appealed the judgment and we affirmed. (People v. Hill
(July 16, 2019, A154192) [nonpub. opn.].)2
In April 2022, defendant filed his petition for resentencing. At the same
time, defendant also filed a motion to dismiss his firearm enhancements
under section 1385, as amended by Senate Bill No. 81 (2021–2022 Reg. Sess.).
The trial court denied the petition and the motion, and defendant appealed.3
Defendant’s appointed appellate counsel, unable to find a reasonably
arguable issue, filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436. Relying on People v. Delgadillo (2022) 14 Cal.5th 216, we
informed defendant that the protections afforded by Wende, supra, at
pages 441–442, including an independent review of the record by Courts of
Appeal, do not apply on appeal of a postconviction petition for resentencing
under section 1172.6. We further informed defendant that his appeal would
be dismissed if he did not file a supplemental brief.
Defendant timely filed a supplemental brief. We address each of his
arguments below.
Discussion
Initially, defendant’s request to dismiss and replace his appointed
appellate counsel is denied. The sole basis urged by defendant for
2Defendant’s request that we take judicial notice of the record filed in
appeal No. A154192 is granted.
3 The trial court also denied defendant’s motion for resentencing under
section 1171.1, which provides for resentencing where a prior-prison-term
enhancement under section 667.5, subdivision (b) has been imposed. The
record does not reflect that such an enhancement was imposed in this case
and defendant has not challenged the denial of this motion on appeal.
2
appointment of replacement counsel is that he strongly disagrees with his
attorney’s conclusion that there are no arguable issues to raise on appeal. As
discussed post, having reviewed defendant’s supplemental brief, we agree
with counsel that there were no arguable issues to be briefed and, thus, we
see no justification for appointment of a second attorney.
Senate Bill No. 1437
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
amended sections 188 (defining malice) and 189 (defining degrees of murder)
to limit the reach of the felony murder rule in cases of first and second degree
murder and eliminated the natural and probable consequences liability for
murder. (Stats. 2018, ch. 1015, §§ 2, 3.) The bill also added section 1172.6,
which creates a procedure for convicted persons who could not be convicted
under the statutes as amended to retroactively obtain relief. (Stats. 2018,
ch. 1015, § 4.) Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg.
Sess.) extended the reach of Senate Bill No. 1437 to convictions for attempted
murder. Thus, Senate Bill No. 775 eliminates the natural and probable
consequences doctrine as a basis to prove an accomplice committed attempted
murder. (People v. Sanchez (2022) 75 Cal.App.5th 191, 196.)
Here, however, there is no dispute that defendant was the only
participant in the crimes and the actual shooter. His conviction was not
based on the natural and probable consequences doctrine. To the extent that
defendant argues in his supplemental brief that there is insufficient evidence
to support the jury’s finding of express malice, that argument was rejected in
his prior appeal. (People v. Hill (July 16, 2019, A154192) [nonpub. opn.].)
Accordingly, the trial court properly denied his petition for resentencing
under section 1172.6.
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Senate Bill No. 81
In 2021, the Legislature enacted Senate Bill No. 81, which amended
section 1385 to specify factors that the trial court must consider when
deciding whether to strike enhancements from a defendant’s sentence in the
interest of justice. (Stats. 2021, ch. 721, § 1.) As relevant here, under the
newly enacted subdivision (c)(2)(C) of section 1385, if “[t]he application of an
enhancement could result in a sentence of over 20 years,” the trial court
“shall . . . dismiss[ ]” the enhancement. (Stats. 2021, ch. 721, § 1.) These
requirements, however, only “apply to . . . sentencings occurring after
January 1, 2022.” (§ 1385, subd. (c)(7).)
Defendant was sentenced and his sentence was upheld well before the
effective date of the amendments to section 1385. Accordingly, the court had
no authority to grant defendant’s motion seeking the dismissal of the
section 12022.53, subdivision (d) firearm-enhancement allegations. The order
denying defendant’s motion is not appealable. (See § 1237, subd. (b) [an order
made after judgment affecting a defendant’s substantial rights is appealable];
People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 [because trial court
lacked jurisdiction to modify defendant’s sentence, motion to modify could not
have affected his substantial rights and was not appealable]; People v.
Johnson (2019) 32 Cal.App.5th 938, 941 [same].)
In any event, defendant’s argument that the judge was required to
provide an oral explanation for the denial of his motion is based on a
misreading of the statute. Section 1385, subdivision (a) requires that that the
trial court state the reasons for striking an enhancement “orally on the
record.” It is not applicable where the court declines to grant such relief.
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Senate Bill No. 620
Defendant contends for the first time in the present appeal that he is
entitled to resentencing under Senate Bill No. 620 (2017–2018 Reg. Sess.),
which amended section 12022.53, effective January 1, 2018, to give the trial
court discretion, in limited circumstances, to strike a firearm enhancement in
the interest of justice. (Stats. 2017, ch. 682, § 2; § 12022.53, subd. (h).) He
argues that it is “clear from the record” that the judge was unaware of his
discretion to strike the enhancement. Defendant’s argument is beyond the
scope of the present appeal. None of defendant’s postconviction motions for
resentencing sought relief under Senate Bill No. 620.
In any event, defendant was sentenced in April 2018, after the effective
date of the amendment of section 12022.53, and he did not challenge the trial
court’s exercise of discretion with regard to the firearm enhancements on
appeal. His conviction and sentence are now final. Senate Bill No. 620 “does
not automatically trigger resentencing for a prisoner who was previously
found to have used a firearm in the commission of a felony.” (People v.
Johnson, supra, 32 Cal.App.5th at p. 940.) Except as provided in section
12022.53, subdivision (h), which is inapplicable, “[t]he new amendment does
not apply to final judgments.” (Johnson, at p. 941.)
Accordingly, the trial court did not err in denying defendant’s petition
for resentencing.
Disposition
The order is affirmed.
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WHITMAN, J.*
WE CONCUR:
STREETER, Acting P. J.
GOLDMAN, J.
*Judge of the Superior Court of California, County of Alameda,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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