Filed 3/6/23 P. v. Quezada CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079801
v. (Super. Ct. No. FWV08082)
ANTONIO GONZALEZ QUEZADA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John Nho Trong
Nguyen, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant Antonio Quezada appeals from a postjudgment order
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denying his Penal Code section 1172.1 (formerly section 1170, subdivision (d)(1) and
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section 1170.03) petition for resentencing. Counsel has filed a brief under the authority
of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386
U.S. 738 (Anders), requesting this court to conduct an independent review of the record.
In addition, defendant has had an opportunity to file a supplemental brief with this court
and has done so. Based on our independent review of the record for potential error and
considering defendant’s personal supplemental brief in support of his appeal, we affirm
the trial court’s denial of the petition for relief under section 1172.1.
II.
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FACTUAL AND PROCEDURAL BACKGROUND
On August 14, 1995, codefendant Arturo Aguilar entered a bank wearing
camouflage clothing and hat and holding a revolver. Aguilar pointed the gun at the teller,
told everyone to get on the ground, and instructed the tellers to put all their money on the
counter.
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All future statutory references are to the Penal Code.
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As a result of Assembly Bill No. 1540, effective January 1, 2022 former section
1170, subdivision (d)(1), was substantively amended and redesignated as section
1170.03. (See, e.g., People v. McMurray (2022) 76 Cal.App.5th 1035, 1038.) Effective
June 30, 2022, section 1170.03 was renumbered section 1172.1 without additional
substantive change. (Stats. 2022, ch. 58, § 9.) We cite to section 1172.1 for ease of
reference unless otherwise indicated.
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A summary of the factual background is taken from the probation officer’s
report.
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Thereafter, defendant walked into the bank with a gun and a bag. After defendant
gave the bag to Aguilar, Aguilar filled the bag with approximately $34,000.00 in cash
from the tellers. A customer’s fanny pack was also taken off a counter during the
robbery. Defendant and Aguilar then fled.
Officer Fortin heard a dispatch call concerning the robbery and stopped the car in
which defendant and Aguilar were riding because he thought they looked suspicious.
While Officer Fortin was completing a field interrogation card, Aguilar put a gun to the
officer’s forehead and told him he was going to kill him. Defendant grabbed Officer
Fortin’s gun, and the two men ordered the officer not to move and to cancel the backup
unit. They also told Officer Fortin “he was dead.” Defendant and Aguilar then ordered
Officer Fortin to lie on the ground and took the keys to the officer’s patrol vehicle. After
the two men got back into their car and sped away with defendant driving, Officer Fortin
radioed for help.
Officer Ohlson “observed the suspect vehicle” and began pursuing it. During the
pursuit, Aguilar shot at Ohlson’s car, in which Officers Thouvenell and Mora were also
passengers. No officer was struck by the bullets. Aguilar and defendant eventually
abandoned their car, and officers pursued them on foot. When officers approached
Aguilar, who was lying on the ground, they saw he had a fatal gunshot wound to his
head. Defendant eventually surrendered. Officers found the stolen money from the bank
and “other victim’s property” in the car.
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At the time of his interview with the probation officer, defendant had been
diagnosed with schizophrenia. He was seeing and hearing voices, and was taking the
medication Haldol.
On September 18, 1998, a jury found defendant guilty of four counts of second
degree robbery (§ 211; counts 1, 3, 4, & 8); assault with a deadly weapon (§ 245, subd.
(a)(1); count 5); assault on a peace officer or firefighter with a deadly weapon (§ 245,
subd. (c); count 6); criminal threats (§ 422; count 7); and evading a peace officer in
willful disregard for safety (Veh. Code, § 2800.2; count 12). The jury found true the
enhancement allegation that defendant personally used a firearm (§ 12022.5, subd. (a))
during the commission of counts 1, 3, 4, 5, 6, 8, and 12. The trial court declared a
mistrial on counts 9, 10, 11, and 13, and took under submission defendant’s motion to
dismiss these counts. Defendant waived his right to a jury trial on the truth of the prior
conviction allegation, and on whether he was “not guilty by insanity.”
On November 20, 1998, defendant pleaded guilty to the lesser offenses of assault
with a firearm on a peace officer as charged in counts 9, 10, and 13. He also admitted to
having suffered a prior serious felony (§ 667, subd. (a)) conviction. In exchange for his
plea, defendant was to receive a total prison sentence of between 30 and 35 years.
Defendant also withdrew his “‘insanity’ plea,” and the trial court agreed to recommend
initial custody at a medical facility.
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On December 17, 1998, the court sentenced defendant to 35 years in prison and
dismissed the firearm use enhancements attached to counts 9, 10, and 13. The court
again recommended that defendant “be placed in a state hospital/medical facility.”
On August 10, 1999, defendant’s sentence was modified with his total sentence
reduced to 34 years in prison. The court again recommended that defendant be housed in
a state hospital.
In a letter dated July 14, 2022, which was addressed to the Office of the District
Attorney and the San Bernardino Superior Court, defendant appeared to request that the
district attorney or the “CDCR Secretary” recommend to the court that he be resentenced
under former section 1170, subdivision (d)(1). Defendant asserted he had “demonstrated
exceptional in-custody behavior,” and that “changed circumstances demonstrat[ed]” his
“continued incarceration is not in the interests of justice.” In support, defendant attached
certificates of completions of educational programs, reference letters, and other
documents showing his performance while in prison. In his letter, defendant also referred
to Senate Bill No. 620, which provided courts with discretion to strike firearm
enhancements.
On July 22, 2022, the trial court noted receipt of defendant’s letter and appointed
counsel to represent defendant.
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At a hearing held on August 12, 2022, the trial court noted that defendant was
relying on former section 1170.03 to support his purported petition for resentencing. The
prosecutor explained that neither the California Department of Corrections and
Rehabilitation (CDCR) nor the Office of the District Attorney had requested recall and
resentencing, and that defendant did not have the ability to independently make the
request. Defendant’s appointed counsel agreed the court did not have the “authority to
resentence [defendant] based on his request.” The court thereafter denied defendant’s
request to be resentenced. Defendant timely appealed.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a
statement of the case and a summary of the procedural background. Counsel considered
potential issues on appeal but found no specific arguments as grounds for relief, and
requests that we exercise our discretion and independently examine the appellate record
for any arguable issues.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. In his supplemental letter brief, defendant argues (1) the trial court erred in
denying his request for resentencing under section 1172.1; (2) the trial court should
exercise its discretion to strike the firearm enhancements pursuant to Senate Bill No. 620;
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and (3) he should never have been sentenced to prison because he was mentally unstable
and the court had recommended he be housed in a mental facility.
Preliminarily, we note that our Supreme Court recently held the procedures set out
in Wende do not apply to an appeal from post-judgment orders. (People v. Delgadillo
(2022) 14 Cal.5th 216, 222.) However, “[w]hen appointed counsel finds no arguable
issues to be pursued on appeal: (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.
[Citations.] [¶] If the defendant subsequently files a supplemental brief or letter, the
Court of Appeal is required to evaluate the specific arguments presented in that brief and
to issue a written opinion. The filing of a supplemental brief or letter does not compel an
independent review of the entire record to identify unraised issues.” (Id. at pp. 231-232.)
Nonetheless, “the Court of Appeal is not barred from conducting its own independent
review of the record in any individual” post-judgment appeals. (Id. at p. 232.)
The appellate review procedures employed here conform to those required under
Delgadillo. Defendant was served with counsel’s brief indicating no arguable issues
were identified for appeal, this court issued a letter inviting defendant to file his own
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personal letter or brief and he did so. In addition to considering the issues raised in
defendant’s personal brief, we have conducted an independent review of the record.
(People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
As previously noted, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) came into
effect on January 1, 2022, and moved the recall and resentencing provisions of former
section 1170, subdivision (d)(1) to former section 1170.03. (Stats. 2021, ch. 719, §§ 1-7.)
Effective June 30, 2022, the Legislature passed Assembly Bill No. 200 (2021-2022 Reg.
Sess.) that, among other things, renumbered former section 1170.03 as section 1172.1
with no change in text. (Stats. 2022, ch. 58, § 9.)
Former section 1170, subdivision (d)(1) authorized the court, in relevant part, to
“at any time upon the recommendation of the secretary . . . in the case of state prison
inmates, . . . [to] recall the sentence and commitment previously ordered and resentence
the defendant in the same manner as if they had not previously been sentenced, provided
the new sentence, if any, is no greater than the initial sentence.” (Stats. 2020, ch. 29,
§ 14.) This provision thus created “an exception to the common law rule that the court
loses resentencing jurisdiction once execution of sentence has begun.” (Dix v. Superior
Court (1991) 53 Cal.3d 442, 455.) The trial court may recall a sentence on its own
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This court’s notice to defendant did not inform him the appeal could be
dismissed if he did not file a personal brief. However, since defendant filed his own
personal brief, which we now evaluate and address on its merits, the lack of notice of
potential dismissal had no effect on the disposition of the appeal and caused no harm to
defendant.
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motion within 120 days for any reason rationally related to lawful sentencing. (Id. at p.
456.)
Newly enacted section 1172.1, subdivision (a)(1) maintains the language of former
section 1170, subdivision (d)(1) and provides, in pertinent part, that “the court may,
within 120 days of the date of commitment on its own motion, at any time upon the
recommendation of the secretary or the Board of Parole Hearings in the case of a
defendant incarcerated in state prison [or] the district attorney of the county in which the
defendant was sentenced . . . recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not previously been
sentenced . . . .” (§ 1172.1, subd. (a)(1); see People v. McMurray, supra, 76 Cal.App.5th
at p. 1040; People v. Cepeda (2021) 70 Cal.App.5th 456, 464.)
In this case, defendant filed his request for relief on July 14, 2022, well after 120
days following the date of his commitment. Moreover, neither the Board of Parole
Hearings nor the Secretary of CDCR nor the district attorney recommended defendant be
resentenced. Therefore, defendant was not entitled to relief pursuant to section 1172.1.
As to defendant’s contentions regarding Senate Bill No. 620 and his sentence to
state prison rather than a state mental hospital, those claims are not properly before us.
Because defendant appealed from a denial of his request for resentencing pursuant to
section 1172.1, he could only raise issues related to the denial of that request for relief.
Furthermore, defendant cannot use the resentencing procedures established by section
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1172.1 to challenge his sentence to state prison as opposed to being committed to a state
mental hospital. Thus, defendant’s remaining arguments are improper.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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