Filed 5/17/23 P. v. Arellano CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B319570
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA112598)
v.
EDGAR ARELLANO,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Juan Carlos Dominguez, Judge.
Affirmed.
Anna Rea, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.
_______________________
Edgar Arellano was convicted in 2017 of residential
burglary with a person present (Pen. Code, §§ 459, 667.5,
subd. (c)(21))1 with a prior strike (§§ 667, subds (b)-(i), 1170.12)
and two prior serious felony convictions (§ 667, subd. (a)) and
sentenced pursuant to a negotiated plea agreement to 22 years in
state prison—a sentence that included the upper term of
six years on the aggravated burglary count (doubled as a result of
the prior strike conviction). On January 12, 2022 Arellano filed a
petition for resentencing, citing Senate Bill No. 567 (Stats. 2021,
ch. 731, § 1.3) (Senate Bill 567), which, effective January 1, 2022,
amended section 1170, subdivision (b), to limit a trial court’s
discretion to impose the upper term of the triad (lower, middle or
upper term of imprisonment) under California’s determinate
sentencing law. The superior court denied the petition, ruling
Arellano was ineligible for relief because his conviction had
become final before the effective date of Senate Bill 567 and he
had been sentenced pursuant to the terms of a negotiated
agreement. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Arellano’s Conviction and First Petition for Resentencing
In April 2016 Arellano was arrested after he entered the
dormitory room of a female college student while she was
sleeping. While in the room, Arellano removed some of the
student’s undergarments from a laundry hamper. Arellano was
1 Statutory references are to this code.
2
not a student at the college and did not have permission to be in
the dormitory.
In January 2017, pursuant to a negotiated agreement,
Arellano pleaded no contest to first degree burglary with a person
present and admitted a 1999 first degree burglary conviction as a
prior strike and 1999 and 2002 first degree burglary convictions
as prior serious felony convictions under section 667,
subdivision (a)(1). He was sentenced to an aggregate state prison
term of 22 years, consisting of the six-year upper term for
residential burglary, doubled, plus two five-year terms for the
prior serious felony enhancements.
This court affirmed Arellano’s conviction on November 29,
2017. (People v. Arellano (Nov. 29, 2017, B281513) [nonpub. opn.]
(Arellano I).) Arellano’s petition for review in the California
Supreme Court (S246344) was denied on February 14, 2018.
His petition for writ of certiorari with the United States Supreme
Court was denied April 22, 2019, at which time the judgment
became final. (See People v. Buycks (2018) 5 Cal.5th 857, 876,
fn. 5 [“[a] judgment becomes final when the availability of an
appeal and the time for filing a petition for certiorari with the
United States Supreme Court have expired”].)
On June 5, 2019 Arellano petitioned for resentencing under
Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1 & 2), which,
effective January 1, 2019, allowed the trial court to exercise its
discretion to strike or dismiss section 667, subdivision (a), prior
serious felony enhancements. The superior court denied the
motion, ruling Senate Bill No. 1393 was not retroactive and, in
any event, did not apply when the defendant had agreed in a
negotiated plea to a specific prison term that included those
enhancements.
3
While Arellano’s appeal of that denial was pending in this
court, the Supreme Court decided People v. Stamps (2020)
9 Cal.5th 685 (Stamps), holding Senate Bill No. 1393 applied to
any case not yet final on appeal on its effective date; a defendant
sentenced pursuant to a negotiated plea agreement need not
obtain a certificate of probable cause to claim on appeal the new
law applies to him or her; Senate Bill No. 1393 applied to
negotiated sentences, at least to a limited extent; but, if the trial
court was inclined to exercise its discretion not to impose a prior
serious felony enhancement that was part of a negotiated
sentence, the prosecutor was entitled to withdraw assent to the
plea agreement. Based on Stamps, we reversed the postjudgment
order denying Arellano’s motion for resentencing and remanded
the matter to provide Arellano the opportunity to ask the trial
court to exercise its discretion not to impose the prior serious
felony enhancements and, if such a request was made, for the
parties and the trial court to follow the process approved in
Stamps. (People v. Arellano (Sept. 14, 2020, B300847) [nonpub.
opn.] (Arellano II).)
On remand the superior court denied Arellano’s request to
strike the prior serious felony enhancements from the agreed-
upon sentence. We affirmed that order, finding no cognizable
issues had been raised or identified in our own independent
review of the record. (People v. Arellano (Jan. 26, 2022, B314434)
[nonpub. opn.] (Arellano III).)
2. Arellano’s Second Petition for Resentencing
On January 12, 2022 Arellano filed a petition for
resentencing under Senate Bill 567. Arellano contended he was
entitled to a hearing to allow the court to consider whether to
resentence him in accordance with Senate Bill 567’s amendments
4
to section 1170, subdivision (b), which limited the authority of the
trial court to impose a sentence exceeding the middle term. He
also noted that Assembly Bill No. 1618 (Stats. 2019, ch. 586, § 1),
added section 1016.8, effective January 1, 2020, providing, in
part, that future beneficial changes in sentencing laws could not
be denied to an individual who was convicted pursuant to a
negotiated plea agreement.
The superior court called the matter on January 31, 2022
without Arellano being present or represented by counsel and
denied the petition. The court ruled, “Defendant’s sentence is
pursuant to an agreed upon disposition between the defense and
the People. [¶] SB 567 does not apply to cases ‘final’ when law
was enacted.”
Arellano filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 567’s Amendments to Section 1170
When Arellano pleaded no contest in 2017, section 1170,
subdivision (b), provided, “When a judgment of imprisonment is
to be imposed and the statute specifies three possible terms, the
choice of the appropriate term shall rest within the sound
discretion of the court.” (Stats. 2020, ch. 29, § 14.) Pursuant to
Senate Bill 567, effective January 1, 2022, the Legislature
amended section 1170, subdivision (b), to provide, “(1) When a
judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).
[¶] (2) The court may impose a sentence exceeding the middle
term only when there are circumstances in aggravation of the
crime that justify the imposition of a term of imprisonment
5
exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have
been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial.” (Stats. 2021, ch. 731, § 1.3.) The
court, however, “may consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction
without submitting the prior convictions to a jury.” (§ 1170,
subd. (b)(3).)2 Senate Bill 567’s amendments were intended “to
limit the sentencing discretion of trial courts” and to “potentially
lessen punishment for defendants sentenced to the upper term on
an offense.” (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108,
1109.)
The ameliorative provisions of Senate Bill 567 apply
retroactively to judgments that were not final as of January 1,
2022. (People v. Zabelle, supra, 80 Cal.App.5th at p. 1109; People
v. Flores (2022) 73 Cal.App.5th 1032, 1039; see People v. Superior
Court (Lara) (2018) 4 Cal.5th 299, 308 [“‘in the absence of
contrary indications, a legislative body ordinarily intends for
ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences that
2 As discussed, with his plea in 2017 Arellano admitted he
had committed two prior serious felonies (first degree burglary in
1999 and 2002). However, the record on appeal does not allow us
to determine whether other aggravating factors not admitted by
Arellano—for example, that the victim, a college student asleep
in her dormitory room, was particularly vulnerable or the crime
involved planning or sophistication (see Cal. Rules of Court,
rule 4.421(a)(3), (8))—also played a role in the People’s agreement
to, and the trial court’s approval of, a disposition including an
upper term for the current burglary offense.
6
are final and sentences that are not’”]; see also In re Estrada
(1965) 63 Cal.2d 740, 744-745.)
2. This Court Has Jurisdiction To Consider the Issue of
Finality Raised by Arellano’s Appeal
Citing People v. King (2022) 77 Cal.App.5th 629 (King), the
Attorney General argues, because Arellano’s judgment of
conviction was final as of April 22, 2019 and remained final
notwithstanding our September 2020 remand in Arellano II, the
superior court lacked jurisdiction to rule on Arellano’s
nonstatutory petition for resentencing (although, as discussed,
the superior court did not dismiss Arellano’s petition on that
ground) and, as a consequence, this court also lacks jurisdiction
to entertain Arellano’s appeal. But this is not a case like People
v. Torres (2020) 44 Cal.App.5th 1081 or People v. Fuimaono
(2019) 32 Cal.App.5th 132 where the defendant’s request for
modification of his sentence to benefit from new ameliorative
sentencing rules was concededly made long after the judgment in
the case was final and without any statutory authorization. The
Attorney General does not contend—and we do not believe—the
superior court lacked jurisdiction to consider the applicability of
Senate Bill 567 to Arellano’s stipulated sentence in light of
Stamps, supra, 9 Cal.5th 685 if the judgment in his case was not
final as of January 1, 2022. At the very least, therefore, the
superior court necessarily had jurisdiction to consider whether
the 2017 judgment was final; and, similarly, we have jurisdiction
to decide that issue in order to determine our own jurisdiction.
(See generally California Redevelopment Assn. v. Matosantos
(2011) 53 Cal.4th 231, 252 [“we have an independent obligation
in this as in every matter to confirm whether jurisdiction exists”];
Kirk v. Ratner (2022) 74 Cal.App.5th 1052, 1060 [same].)
7
Nothing in King, supra, 77 Cal.App.5th 629 is to the
contrary. The incarcerated defendant in King moved to vacate an
unauthorized sentence well after the judgment was final and he
had begun serving the sentence, relying on the rule that an
unauthorized sentence may be corrected at any time. (Id. at
pp. 633-634.) Our colleagues in Division Two of this court held
the unauthorized sentence rule is an exception to the waiver
doctrine (that is, that a defendant generally forfeits an objection
not properly made in the trial court at the time an alleged error
was committed), but not to the requirement the court must have
jurisdiction before it may act. (Id. at p. 635 [“Such a sentence
may be challenged at any time, even after a judgment of
conviction has become final, and even if the judgment has already
been affirmed on appeal. [Citation.] However, ‘to invoke this
rule the court must have jurisdiction over the judgment’”]; accord,
In re G.C. (2020) 8 Cal.5th 1119, 1130.) As King explained,
“[T]he unauthorized sentence doctrine does not itself create
jurisdiction for a trial court to rule on an incarcerated defendant’s
motion to correct an alleged illegal sentence after the conviction
is final and after the execution of the sentence has begun.” (King,
at pp. 641-642.)
Applying the general rule 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,’” King
then held 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.” (King, supra, 77 Cal.App.5th
at p. 640; accord, People v. Torres, supra, 44 Cal.App.5th at
p. 1084.) Finally, quoting from the decision in Torres at
8
page 1084, King held, “‘[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,’” and dismissed King’s
appeal. (King, at pp. 634, 641; see People v. Loper (2015)
60 Cal.4th 1155, 1165-1166 [because the defendants in the cases
cited by the Attorney General moved for resentencing more than
120 days after their commitment and the trial courts lacked
jurisdiction to resentence them on their own motion, “their
refusal to act on a defective defense motion for resentencing could
not have affected any legal rights the defendants in those cases
possessed, and the appellate courts properly dismissed the
appeals”]; People v. Fuimaono, supra, 32 Cal.App.5th at p. 135
[“Because the trial court lacked jurisdiction to modify defendant’s
sentence, denial of his motion to modify his sentence could not
have affected his substantial rights. [Citation.] Accordingly, the
‘order denying [the] motion to modify sentence is not an
appealable order,’ and the appeal must be dismissed”].)3
3 The King court explained the incarcerated defendant in the
case before it could seek to correct his unauthorized sentence
through a petition for writ of habeas corpus. (King, supra,
77 Cal.App.5th at p. 640.) In his opening brief Arellano requests
we treat his appeal as a petition for writ of habeas corpus and
consider the merits of his position if we were to find the superior
court’s January 31, 2022 order was not appealable.
Unquestionably we would have jurisdiction to do so. (Cf. People
v. Buycks, supra, 5 Cal.5th at p. 895 [“‘habeas corpus proceedings
may provide a vehicle to obtain relief limited to a new sentencing
hearing in the original criminal action, which may result in a
different sentence’”].)
9
Before dismissing the appeal, however, the King court
emphasized, “Our holding here is necessarily limited to the
circumstances of this case, involving a motion filed by an
incarcerated defendant seeking a substantive change to his
sentence after his conviction has become final and where the trial
court did not otherwise have jurisdiction.” (King, supra,
77 Cal.App.5th at p. 641.)
Unlike the appellant in King, Arellano challenges the
superior court’s finding his judgment of conviction was final as of
April 22, 2019 and, with that, disputes the Attorney General’s
contention the superior court had no jurisdiction to consider his
petition for resentencing—a somewhat different issue from
whether a defendant whose judgment is final may benefit from
Senate Bill 567’s ameliorative changes to California’s
determinate sentencing law, which was the question addressed in
the superior court’s ruling. Arellano had the right to assert his
conviction was not final prior to January 1, 2022 in the superior
court and to appeal to this court the superior court’s adverse
finding, the resolution of which may affect his substantial rights.
(See § 1237, subd. (b) [an appeal may be taken by a defendant
from “any order made after judgment, affecting the substantial
rights of the party”]; Teal v. Superior Court (2014) 60 Cal.4th
595, 600 [“a postjudgment order ‘affecting the substantial rights
of the party’ [citation] does not turn on whether that party’s claim
is meritorious, but instead on the nature of the claim and the
court’s ruling thereto”].)
10
3. Arellano’s Judgment of Conviction Remained Final as of
April 22, 2019 Notwithstanding Our Remand Under
Stamps
As discussed, on June 5, 2019 Arellano petitioned for
resentencing under Senate Bill No. 1393. In Arellano II, supra,
B300847, we held, because the United States Supreme Court did
not deny Arellano’s petition for writ of certiorari seeking review
of our decision in Arellano I, supra, B281513, until April 22,
2019, the judgment was not yet final on January 1, 2019 when
Senate Bill No. 1393 became effective. Accordingly, pursuant to
Stamps, supra, 9 Cal.5th 685, we reversed the order denying
Arellano’s petition for resentencing and remanded the matter
“with directions to the superior court to consider Arellano’s
request, if he elects to make one, to reduce his sentence by
dismissing one or both the prior serious felony enhancements
previously imposed and, if a request is made, to follow the process
described by the Supreme Court in Stamps.”
Following issuance of our remittitur in Arellano II,
Arellano asked the court to exercise its discretion to strike the
two prior serious felony enhancements it had imposed in 2017.
The court denied Arellano’s request on June 2, 2021, and we
affirmed that order in Arellano III, supra, B314434, on
January 26, 2022. The California Supreme Court denied
Arellano’s petition for review on April 13, 2022 (S273539). The
United States Supreme Court denied his petition for writ of
certiorari on January 26, 2023.
Because the proceedings on his request pursuant to the
procedure established in Stamps, supra, 9 Cal.5th 685 were still
pending on January 1, 2022, Arellano contends his judgment of
conviction was no longer final on that date and he is entitled to
the benefit of Senate Bill 567’s ameliorative provisions restricting
11
the authority of the superior court to impose an upper term
sentence absent jury findings or an admission by the defendant.
To support this argument Arellano cites only the Supreme
Court’s recent decision in People v. Padilla (2022) 13 Cal.5th 152
(Padilla)—a case that stood in a very different posture from
Arellano’s.
In Padilla the Supreme Court held the presumption of
retroactivity for legislation that lessens criminal sanctions
applied to a defendant whose judgment had become final on
direct review but was subsequently vacated for resentencing
during habeas corpus proceedings. (Padilla, supra, 13 Cal.5th at
pp. 158-159.) The Court explained, “A case is final when ‘the
criminal proceeding as a whole’ has ended [citation] and ‘the
courts can no longer provide a remedy to a defendant on direct
review’ [citation]. When Padilla’s sentence was vacated, the trial
court regained the jurisdiction and duty to consider what
punishment was appropriate for him, and Padilla regained the
right to appeal whatever new sentence was imposed. His
judgment thus became nonfinal.” (Id. at pp. 161-162.)
Unlike the habeas proceedings in Padilla, before we
returned Arellano’s case to the superior court in Arellano II, we
did not vacate his sentence; and following remand the superior
court had no duty to resentence Arellano. To the contrary, absent
a request by Arellano pursuant to the procedure outlined in
Stamps, no further proceedings would have occurred at all. Once
made, Arellano’s request that the superior court modify his
2017 sentence by striking one or both five-year prior serious
felony enhancements was just that—a request that the sentence
be vacated and he be resentenced. Because that request was
rejected, there was no new sentencing hearing. Accordingly, the
12
original judgment of conviction remained final as of April 22,
2019 when direct review was completed, well before the effective
date of Senate Bill 567. (See Padilla, supra, 13 Cal.5th at p. 162
[“[m]erely filing a collateral attack does not make the judgment
nonfinal”]; People v. Guillory (2022) 82 Cal.App.5th 326, 335-336
[“An order to show cause under section 1172.6 does not vacate the
petitioner’s sentence but, like the habeas corpus petition in
Padilla, sets in motion proceedings to determine whether the
petitioner is entitled to vacatur and resentencing. [Citation.]
The original judgment remains final until that determination is
made”]; see also People v. Rodriguez (1998) 17 Cal.4th 253, 258
[“we may properly remand to permit the trial court to make the
threshold determination of whether to exercise its discretion in
defendant’s favor without necessarily requiring resentencing
unless the court does act favorably”]; People v. Cervantes (2021)
72 Cal.App.5th 326, 332 [remand to allow the trial court to
exercise its newly authorized discretion to strike firearm
enhancements under Senate Bill No. 630 (Stats. 2017, ch. 682)
“did not vacate the sentence in any way”].)
The retroactive benefits of Senate Bill 567 extend only to
nonfinal judgments. The superior court correctly denied
Arellano’s petition for resentencing because the judgment of
conviction in his case was final before the legislation’s effective
date.4
4 The courts of appeal have disagreed whether Senate
Bill 567 applies to a defendant who stipulated to a sentence that
includes an upper term as part of a negotiated plea agreement.
In People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted
December 14, 2022, S277314, the court held it did not, reasoning,
when sentencing the defendant pursuant to the stipulated
agreement, the trial court “had no opportunity to exercise any
13
DISPOSITION
The postjudgment order denying Arellano’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
discretion in deciding whether the imposition of the upper,
middle, or lower term would best serve ‘the interests of justice.’”
(Id. at p. 1058.) In People v. Todd (2023) 88 Cal.App.5th 373,
review granted April 26, 2023, S279154, the court held it did,
pointing to section 1016.8, effective January 1, 2020, which
provides an individual convicted pursuant to a negotiated plea
agreement is entitled to subsequent beneficial changes in
sentencing laws. The Todd court explained, in its view, “the
relevant question here is not whether the sentencing judge is
bound by the parties’ stipulated sentence, but whether Todd is
entitled to the ameliorative effect of Senate Bill No. 567’s new
sentencing provisions.” (Id. at p. 380.) Concluding he was, the
court remanded the case for resentencing under section 1170,
subdivision (b), as amended by Senate Bill 567, in accordance
with the procedure established by the Supreme Court in Stamps,
supra, 9 Cal.5th 685. (Todd, at p. 382.)
Because we conclude Arellano’s judgment of conviction was
final prior to the effective date of Senate Bill 567, we need not
add our view on the issue, which is currently pending in the
Supreme Court in People v. Mitchell, supra, S277314.
14