People v. Hernandez
246 Cal. Rptr. 3d 87
| Cal. Ct. App. 5th | 2019Background
- In October 2016 Salvador Hernandez pled guilty to two counts of assault with a semiautomatic firearm and admitted personal use/great-bodily-injury enhancements; sentenced to nine years including firearm-use enhancements under Penal Code §12022.5 (subds. (a) & (d)).
- Hernandez appealed; this court affirmed the judgment and the remittitur issued November 16, 2017, making the judgment final.
- On December 15, 2017 Hernandez moved in the trial court to strike the firearm enhancements, arguing a plea-colloquy error (wrong subdivision referenced) and that subdivision (d) is limited to drive-by shootings; the court denied the motion on January 8, 2018.
- Hernandez did not challenge the trial court’s rulings on those substantive claims on appeal; instead he argued the court should resentencing under Senate Bill No. 620, which grants discretion to strike §12022.5 enhancements.
- The court concluded it lacked jurisdiction to grant relief because the judgment was final and SB 620 does not authorize resentencing of cases that are already final; thus the order denying relief was not appealable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of postjudgment motion to strike §12022.5 enhancements is appealable | Hernandez: SB 620 gave courts discretion to strike enhancements and issue preserved; seeks remand for resentencing | People: Once judgment is final the court lacks jurisdiction to modify sentence; order denying motion does not affect substantial rights and is not appealable | Appeal dismissed: order not appealable because trial court lacked jurisdiction and SB 620 does not apply retroactively to final judgments |
| Whether SB 620 applies retroactively to convictions final before its effective date | Hernandez: SB 620 should apply; cites §12022.5(c) language about "any resentencing" | People: SB 620 does not authorize resentencing of final convictions; exception in (c) limited to resentencings under other laws | Court: SB 620 does not authorize resentencing of final cases; Hernandez not entitled to retroactive relief |
| Whether denial of the motion could have been raised on direct appeal | Hernandez: claims issue preserved or counsel ineffective for not raising it earlier | People: Claims were reviewable on direct appeal and thus forfeited postjudgment | Court: Claims could have been raised on direct appeal; denial after final judgment does not create an appealable order |
| Whether equal protection requires retroactive application of SB 620 | Hernandez: differential treatment violates equal protection | People: Legislature may limit retroactivity to preserve penal deterrence | Court: No equal protection violation; statutes lessening punishment may be prospective only |
Key Cases Cited
- People v. Mazurette, 24 Cal.4th 789 (statutory basis required for appealability)
- In re Kapperman, 11 Cal.3d 542 (legislature may limit retroactivity of penal reductions)
- People v. Totari, 28 Cal.4th 876 (issues that could be raised on direct appeal are generally not cognizable in postjudgment motions)
- People v. Turrin, 176 Cal.App.4th 1200 (order denying postjudgment relief that could not be granted lacks appealability because it does not affect substantial rights)
- People v. Fuimaono, 32 Cal.App.5th 132 (SB 620 does not authorize resentencing of convictions that are final; denial of such a motion is not appealable)
- People v. Johnson, 32 Cal.App.5th 938 (SB 620 not retroactive to final convictions)