Filed 1/21/20 P. v. Davis CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

LOUIS ANTHONY DAVIS,

Defendant and Appellant.

B298209

(Los Angeles County

Super. Ct. No. GA047737)

APPEAL from a judgment of the Superior Court of Los Angeles County, Suzette Clover, Judge. Affirmed.

Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

BACKGROUND

In 2002, a jury convicted appellant Louis Anthony Davis of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b) ), shooting at an occupied motor vehicle (§ 246), and possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury also found true allegations appellant personally used a firearm. (§ 12022.5, subd. (a).) The court found appellant suffered a previous strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and serious felony conviction (§ 667, subd. (a)(1)), and had not remained free of custody for five years (§ 667.5, subd. (b)).

After denying appellant’s motion to strike his strike, the court sentenced him to a total of 27 years in state prison. The sentence consisted of 12 years for the assault (midterm of six years, doubled), 10 years for the firearm enhancement, and five years for the prior serious felony. The court imposed and stayed sentences for the other crimes (§ 654) and one-year prison prior. In 2004, on remittitur after appellant’s direct appeal, the court struck the one-year prison prior.

At the time appellant was sentenced, the trial court had no power to strike enhancements for prior convictions. On September 30, 2018, the Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393), amending sections 667, subdivision (a) and 1385 to provide the trial court with discretion to strike enhancements for serious felony convictions. The legislative changes became effective January 1, 2019.

On March 14, 2019, appellant, in propria persona, filed a petition for recall of his sentence and resentencing in accordance with S.B. 1393. The trial court denied the request on April 16, 2019. The court explained, “Petitioner’s case is final and the new law does not apply to cases that are final. Therefore the court has no jurisdiction to recall his sentence and consider exercise of its discretion in this regard.” Appellant timely appealed.

Appellant’s appointed counsel filed a brief requesting that we independently review the record for error pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We directed counsel to send the record and a copy of the brief to appellant, and notified appellant of his right to respond within 30 days. We have received no response.

DISCUSSION

We dismiss the appeal for two reasons. First, appellant is not entitled to Wende review. “In an indigent criminal defendant’s first appeal as a matter of right, the Court of Appeal must independently review the record if appointed counsel represents he or she has found no arguable issues.” (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535, citing Anders v. California (1967) 386 U.S. 738; Wende, supra, 25 Cal.3d 436.) A defendant is not entitled to such review “in subsequent appeals.” (People v. Serrano (2012) 211 Cal.App.4th 496, 503 (Serrano); see also People v. Kisling (2015) 239 Cal.App.4th 288, 290 (Kisling).) As this is an appeal from a petition for resentencing, not a first appeal as a matter of right, appellant is not entitled to Wende review. Because neither appellant nor his counsel has raised any claims of error, we dismiss the appeal as abandoned. (See Serrano, supra, 211 Cal.App.4th at pp. 503-504; Kisling, supra, 239 Cal.App.4th at p. 292 & fn. 3.)

Second, appellant was convicted and sentenced in 2002, and completed his direct appeal in 2004; the judgment has been final for more than a decade. S.B. 1393 applies only to cases that were not yet final on its effective date. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Absent new authority to resentence appellant under S.B. 1393, the trial court lacked jurisdiction to grant his resentencing request. (See People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725.) Because the trial court lacked jurisdiction to grant the relief requested in appellant’s motion, its order denying the motion did not affect his substantial rights and is not an appealable postjudgment order. (§ 1237, subd. (b); People v. Chlad, supra, 6 Cal.App.4th at pp. 1725-1726; see also People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) Thus, “[t]he appeal is ‘irregular’ and will be dismissed. (§ 1248.)” (People v. Johnson, (2019) 32 Cal.App.5th 938, 941; see also People v. Fuimaono, supra, 32 Cal.App.5th at p. 135.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.