THE PEOPLE,
A164763, A164969 (Humboldt County Case No. CR091869AS)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 12/15/22
CERTIFIED FOR PARTIAL PUBLICATION*
In these consolidated appeals, defendant Jeffrey Alan Burgess appeals the denial of his motion for resentencing under
FACTUAL AND PROCEDURAL BACKGROUND
In December 2009, the Humboldt County District Attorney filed an amended information that charged Burgess with first degree residential robbery (
In January 2010, pursuant to a plea agreement, Burgess was sentenced to 30 years in prison: nine years for the underlying robbery, a consecutive 20 years for the firearm use enhancement, and a consecutive one year for his prior prison term enhancement.
In February 2022, Burgess filed a motion in propria persona to vacate his one-year prison prior enhancement pursuant to
In March 2022, Burgess again petitioned to vacate his sentence for resentencing, seeking relief this time pursuant to “new statutory law under Senate Bill 81” which enacted amendments to
On April 19, 2022, in A164763, Burgess through appointed counsel filed his opening brief contending the trial court erred in refusing to recall his sentence and resentence him in accord with
On the court‘s own motion, in the interests of judicial economy, we consolidate A164763 and A164969.
DISCUSSION
A. A164763 – Motion to Vacate Prison Prior Term Enhancement and Resentence Pursuant to Amended Section 667.5, subdivision (b)
Prior to January 1, 2020,
Later, in 2021, the Legislature enacted Senate Bill No. 483 (“SB 483“). This bill sought to make the changes implemented by SB 136 retroactive. (Stats. 2021, ch. 728, § 1 [“it is the intent of the Legislature to retroactively apply . . . Senate Bill 136 of the 2019-20 Regular Session to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements“].) It took effect on January 1, 2022, and added former section 1171.1, now section 1172.75, to the
After the trial court receives from the CDCR and county correctional administrator the information included in subdivision (b) of the statute, “the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a),” and if so, “recall the sentence and resentence the defendant.” (
Burgess contends that his “motion requesting resentencing contained all the required information” set forth in
This court, however, lacks jurisdiction to consider Burgess’ appeal of the trial court‘s order denying his petition for resentencing. In People v. King (2022) 77 Cal.App.5th 629 (King), rev. denied July 27, 2022, the defendant moved to vacate an unauthorized portion of his 105-year sentence, approximately 35 years after he was originally sentenced. (Id. at p. 633.) The court explained: “The general rule is 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.’ [Citations.] And, ‘[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.‘” (Id. at p. 634.) Several exceptions to this jurisdictional rule were noted by the court. For instance, even after a judgment is final, the court retains jurisdiction to resentence the defendant pursuant to “specific statutory avenues for incarcerated defendants to seek resentencing in particular cases,” or pursuant to a “properly filed” habeas petition. (Id. at p. 637.) But the court found no exception applied. (Id. at pp. 637-642.)
The King court also explained that 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. [Citation.] Thus, a defendant who wishes to challenge a sentence as unlawful after the defendant‘s conviction is final and after the defendant has begun serving the sentence must do more than simply file a motion in the trial court making an allegation that the sentence is legally infirm.” (King, supra, 77 Cal.App.5th at p. 640.) Since the defendant in that case had filed his motion to correct his sentence more than 30 years after he had begun serving it, the court concluded that absent any exception, the trial court had no jurisdiction to entertain the defendant‘s motion to vacate his sentence and it had no appellate jurisdiction, so it dismissed the appeal. (Id. at pp. 633-634, 641.)
Even if we were to consider Burgess’ claim on the merits, it would fail. Burgess’ appeal raises issues of statutory construction, which presents issues of law subject to our independent review. (People v. Bravo (1990) 219 Cal.App.3d 729, 732.) “Our decisions have long recognized that a court‘s ‘overriding purpose’ in construing a statute is ‘to give the statute a reasonable construction conforming to [the Legislature‘s] intent [citation] . . .‘” [Citation.] ‘The court will apply common sense to the language at hand and interpret the statute to make it workable and reasonable.’ [Citation.] ‘When a statute is capable of more than one construction, “[w]e must . . . give the provision a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.“‘” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567.)
Here, there is no dispute that Burgess’ one-year sentence for his prison prior enhancement pursuant to
As discussed above,
The legislative history of SB 483 reflects the Legislature‘s purpose in staggering the schedule to minimize the impact on trial courts, while
Burgess was sentenced in 2010 to 30 years in prison, which consisted of a nine-year term for robbery, a 20-year consecutive term for a firearm enhancement, and a one-year consecutive term for the prison prior enhancement. He has not yet begun serving the now invalid prison prior enhancement and is thus not eligible for priority in recall and resentencing. Remanding this case for resentencing at this juncture would undermine the purpose of the staggered statutory deadlines and could allow Burgess to obtain relief before others who are currently serving time on legally invalid enhancements. Burgess is assured by the terms of the statute to be resentenced by December 31, 2023, well before he will begin to serve any time for the prison prior enhancement. He has made no showing as to why this timing is inadequate in light of his overall sentence. The court did not err in denying his request to vacate and resentence.
Noting the People‘s concession that his sentence is legally invalid, Burgess presses that “nothing in [
Addressing the legislative history, Burgess argues that the “concern about limited resources and delayed services remains throughout the legislative history despite the addition of the staggered statutory deadline.” He asserts that “it is difficult to conclude that the Legislature concocted the staggered statutory deadlines for the purpose of ensuring no disruption to, or delay in, court services, when the Legislature itself recognized that disruption and delay remained a concern even under the amended scheme.” Again, we disagree. The staggered and extended statutory deadlines were proposed in conjunction with concerns about the increase in workload to the courts and the CDCR. (See Sen. Com. on Appropriations, Amended Analysis of Sen. Bill No. 483 (2021–2022 Reg. Sess.) May 20, 2021, pp. 1–2.) It is thus reasonable to infer that the staggered and extended deadlines were added to address these concerns. Further, simply because workload concerns persisted in light of the added duties imposed on the courts and others provides no support for circumventing the express procedure established by the Legislature.
Finally, Burgess contends interests of judicial economy warrant immediate recall and resentencing since remand now will save CDCR from duplicating efforts later. We are not persuaded by these arguments either. We decline to adopt any construction which allows Burgess or any other defendant who is not yet serving a sentence based on an enhancement that section 1172.75 repeals to jump the line in front of those who are.
B. A164969 - Motion to Vacate Firearm Enhancement and Resentence Pursuant to Amended Section 1385 (Wende Appeal)
Burgess’ appointed counsel has identified no issues for review but rather filed an opening brief asking that this court conduct a Wende review. Counsel also informed Burgess that he had the right to file a supplemental brief on his own behalf, but he has not done so.
Burgess’ counsel correctly recognizes that certain authorities have held that Wende review is constitutionally required only from a defendant‘s first appeal from a criminal conviction. (See, e.g., People v. Cole (2020) 52 Cal.App.5th 1023, 1028, rev. granted Oct. 14, 2020, S264278 (Cole) [Wende does not apply to appeals from the denial of postconviction relief]; People v. Figueras (2021) 61 Cal.App.5th 108, 111, rev. granted May 12, 2021, S267870 (Figueras) [following Cole]; People v. Flores (2020) 54 Cal.App.5th 266, 273 (Flores) [Wende procedures inapplicable to appeal from denial of petition for resentencing under
We apply the reasoning of Cole, as Burgess’ appeal from the order denying his motion for resentencing pursuant to
Even if we were to exercise our discretion to conduct an independent review of the denial of Burgess’ resentencing motion, the result would not be favorable to Burgess. (Flores, supra, 54 Cal.App.5th at p. 269 [court may exercise discretion to conduct Wende review even where it is not constitutionally required].) SB 81 amended
Case Nos. A164763 and A164969 are dismissed.
Petrou, J.
WE CONCUR:
Tucher, P.J.
Fujisaki, J.
A164763/A164969/People v. Burgess
Trial Court: Humboldt County Superior Court
Trial Judge: Hon. Gregory Elvine-Kreis
Counsel: Office of Attorney General, Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney general, Jeffrey M. Laurence, Senior Assistant Attorney General, Amit Kurlekar, Deputy Attorney General, Jalem Z. Peguero, Deputy Attorney General, for Plaintiff and Respondent.
First District Appellate Project, Catherine White, for Defendant and Appellant.