34 Cal.App.5th 323
Cal. Ct. App.2019Background
- In Oct. 2016 Hernandez pled guilty to two counts of assault with a semiautomatic firearm (Pen. Code § 245(b)), admitted personal use of a firearm (§ 12022.5(a)/(d)) and a great bodily injury enhancement (§ 12022.7). He was sentenced to nine years, including two 3-year terms for the firearm enhancements (one consecutive, one concurrent).
- Hernandez appealed; this court affirmed and the remittitur issued Nov. 16, 2017, making the judgment final.
- On Dec. 15, 2017 Hernandez filed a postjudgment motion in the trial court to strike the firearm enhancements, arguing (1) clerical/legal errors in the plea and (2) that § 12022.5(d) only covers drive-by shootings; the trial court denied the motion on Jan. 8, 2018 and Hernandez appealed from that denial.
- After the hearing, Senate Bill No. 620 amended § 12022.5 to authorize courts to strike firearm enhancements in the interest of justice; Hernandez argued SB 620 required remand or applied retroactively.
- The Court of Appeal concluded the trial court lacked jurisdiction to modify a final judgment and the denial of the postjudgment motion was not an appealable order; it therefore dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order denying a postjudgment motion to strike firearm enhancements is appealable | People: order not appealable because court lacked jurisdiction to modify a final judgment | Hernandez: appealable because SB 620 created a new ground for resentencing and issue was preserved | Held not appealable; trial court lacked jurisdiction to modify sentence after judgment became final and thus the order did not affect substantial rights (appeal dismissed). |
| Whether SB 620 applies retroactively to judgments already final | People: SB 620 does not authorize resentencing of final convictions | Hernandez: SB 620’s language about "any resentencing" permits relief even for final cases | Held SB 620 does not authorize resentencing of convictions that are final; its limited reference to "any resentencing" applies only when resentencing occurs pursuant to some other law. |
| Whether denying retroactive application of SB 620 violates equal protection | People: prospective application is permissible to preserve penal deterrence | Hernandez: prospective-only application creates an equal protection problem | Held no equal protection violation; courts may limit ameliorative statutes to prospective effect to preserve original penal policies (citing precedent). |
| Whether ineffective assistance preserves the claim despite finality | People: claims could have been raised on direct appeal and are not rescued by ineffective assistance argument postjudgment | Hernandez: trial counsel was ineffective for not raising SB 620-based resentencing earlier | Held court did not reach merits because order was not appealable; claim could have been raised on direct appeal. |
Key Cases Cited
- People v. Mazurette, 24 Cal.4th 789 (discussing appealability and statutory right to appeal)
- People v. Turrin, 176 Cal.App.4th 1200 (order denying postjudgment motion that could have been raised on direct appeal is not appealable)
- People v. Totari, 28 Cal.4th 876 (claims that could have been reviewed on direct appeal cannot usually be attacked in postjudgment motion)
- In re Kapperman, 11 Cal.3d 542 (upholding prospective application of ameliorative penal statutes)
- People v. Fuimaono, 32 Cal.App.5th 132 (SB 620 does not authorize resentencing of final convictions; denial of postjudgment resentencing motion is not appealable)
- People v. Johnson, 32 Cal.App.5th 938 (SB 620 does not apply retroactively to final cases)