Filed 6/11/21 P. v. Serrato CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081066
Plaintiff and Respondent,
(Super. Ct. No. CR-19-005080)
v.
JOSE MARIA SERRATO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Franson, Acting P.J., Smith, J. and Meehan, J.
Appointed counsel for appellant Jose Maria Serrato asked this Court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Serrato appeals from the trial court’s denial of his post-
judgment motion to modify his sentence by striking a prior prison term enhancement
(Pen. Code,1 § 667.5) applied to his sentence. Senate Bill No. 136 (2019-2020 Reg.
Sess.) (Senate Bill No. 136), which became effective January 1, 2020, amends the
circumstances under which a one-year sentence enhancement may be imposed under
section 667.5, subdivision (b). The statute was enacted after Serrato’s judgment of
conviction became final, and therefore, does not apply to his case. We therefore dismiss
the appeal.
BACKGROUND
On July 11, 2019, following a negotiated plea, Serrato was sentenced to an
aggregate term of four years in state prison. He received a term of three years for driving
under the influence of alcohol with an enhancement for a prior felony conviction (Veh.
Code, §§ 23152, subd. (b), 23550, subd. (a)), and a one-year term for a prior prison term
enhancement (§ 667.5, subd. (b)). In view of his plea, a prior strike conviction was
stricken.
On October 8, 2019, Governor Newsom signed Senate Bill No. 136 into law.
Under the statute, a one-year prior prison term enhancement will only apply if a
defendant served the prison term for a sexually violent offense as defined in Welfare and
Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.) The
statute became effective on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c); Gov.
Code, § 9600, subd. (a).)
1 All undefined statutory citations are to the Penal Code unless otherwise indicated.
2.
On February 19, 2020, acting in propria persona, Serrato filed a petition for
resentencing seeking to have a prior prison term enhancement (§ 667.5, subd. (b))
stricken pursuant to Senate Bill No. 136.
On March 12, 2020, Serrato’s motion was denied. The trial court held that
pursuant to People v. Lopez (2019) 42 Cal.App.5th 337, Serrato was not entitled to relief
under Senate Bill No. 136 because his conviction had become final prior to the enactment
of the statute.
On April 15, 2020, Serrato filed a timely notice of appeal.
DISCUSSION
The record does not contain any indication showing Serrato appealed from his
original judgment of conviction. As a result, the judgment became final long before
Senate Bill No. 136 became effective (see People v. Lopez, supra, 42 Cal.App.5th at pp.
341-342), and the superior court lacked jurisdiction to grant Serrato relief under the
statute.
“ ‘It is settled that the right of appeal is statutory and that a judgment or order is
not appealable unless expressly made so by statute.’ ” (People v. Mazurette (2001) 24
Cal.4th 789, 792.) An order made after judgment affecting the defendant’s substantial
rights is appealable (§ 1237, subd. (b)). However, a defendant’s “ ‘substantial rights’
cannot be affected by an order denying that which he had no right to request.” (People v.
Pritchett (1993) 20 Cal.App.4th 190, 194.)
The trial court here did not have jurisdiction to modify Serrato’s sentence. Section
1170, subdivision (d) permits a sentencing court to recall a defendant’s sentence on the
court’s own motion, but the trial court only has 120 days from the date of the
commitment to do so. This statutory timeframe had already passed when Serrato filed his
request to modify his sentence.
If the trial court lacks jurisdiction to rule on motion to vacate or modify sentence, an
order denying such a motion is nonappealable, requiring dismissal of the appeal. (People v.
3.
Torres (2020) 44 Cal.App.5th 1081, 1084.) Under the circumstances, the trial court here
lacked jurisdiction to grant relief, and the appeal must be dismissed. (See People v.
Hernandez (2019) 34 Cal.App.5th 323, 326-327 [denial of Senate Bill No. 620 (2017-2018
Reg. Sess.) motion dismissed where trial court lacked jurisdiction to modify the defendant’s
sentence]; People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 [same]; People v.
Alexander (2020) 45 Cal.App.5th 341, 344 [dismissing an appeal from an order denying the
defendant’s post-judgment motion to strike enhancements for prior serious felony
convictions under Senate Bill No. 1393 (2017-2018 Reg. Sess.), because the trial court
lacked jurisdiction to grant the motion].)
Finding no arguable issues upon this record (Wende, supra, 25 Cal.3d at pp. 441-442),
we dismiss the appeal.
DISPOSITION
The appeal is dismissed.
4.