Filed 1/21/22 P. v. Lee CA 5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

STEPHEN LEE,

Defendant and Appellant. F080186

(Fresno Super. Ct. No. CF02907322)



### OPINION

THE COURT *

APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.

Michelle T. LiVecchi

- Raufi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.

- ooOoo

-

* Before Levy, Acting P. J., Franson, J. and Meehan, J.2

. INTRODUCTION
Appellant Stephen Lee pleaded no contest to voluntary manslaughter and
attempted murder, and he was sentenced to 25 years four months in prison pursuant to a
negotiated disposition. Thereafter, he filed numerous motions in the superior court and
asserted he should be resentenced based on subsequent legislative enactments, initiatives,
and court rulings. These motions were denied, and he filed the instant notice of appeal
after the denial of his most recent motion for resentencing.
On appeal, his appellate counsel has filed a brief that summarizes the facts with

citation s to the record, raises no issues, and asks this court to independently review the

record. ( People v. Wende (1979) 25 Cal.3d 436

. ) We affirm.

PROCEDURAL HISTORY 1

Plea P roceedings

On August 12, 2003, appellant entered into a negotiated disposition in the Superior
Court of Fresno County a nd pleaded no contest to count 1, voluntary manslaughter (Pen.

Code, § 192, subd. (a)), 2 and admitted enhancements for personal use of a firearm
(§ 12022.5, subd. (a)(1)) and that the offense was committed for the benefit of a criminal
street gang (§ 186. 22, subd. (b)(1)(C)). He also pleaded no contest to count 2, attempted

murder (§§ 664, 187) and admitted a great bodily injury enhancement (§ 12022.7,

subd. (a)).
As part of the negotiated disposition, the court gave an indicated sentence of 25
years four months in prison. The parties stipulated to a factual basis based on People v.

West (1970) 3 Cal.3d 595.

1 The instant record does not include any facts or charging documents that resulted in appellant’s convictions. The record of this appeal is limited to the following information.
2 All further statuto ry citations are to the Penal Code unless otherwise indicated.3

.

Sentence
On September 9, 2003, the court held the sentencing hearing and imposed the
aggregate term of 25 years four months in prison, consistent with the plea agreement:
count 1, voluntary manslaughter, the lower term of three years, plus consecutive terms of
10 years for the firearm enhancement 3 and 10 years for the gang enhancement 4 ; and
count 2, attempted murder, a consecutive term of two years four months (one

- third the
midterm of seven years) and stayed the term for the great bodily injury enhancement
pursuant to section 654.

POSTJUDGMENT MOTIONS

First M otion for R esentencing

On or about April 24, 2016, a ppellant filed

, in pro. per., a n ex parte motion for the
superior court to modify his sentence and argued newly amended sections 1170 and
1170.1 required imposition of midterms for both the firearm and gang enhancements

attached to count 1.
On May 18, 2016, the court issued an order denying appellant’s motion, and held
it did not have jurisdiction to rule on the merits of his postjudgment motion “other than to

3 Former section 12022.5, subdivision (a)(1) stated the enhancement for personal use of a firearm was three, four, or 10 years.
4 Section 186.22 “provides different levels of enhancement for th e base felony if that felony is ‘ committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members

.... ’ [Citation.] If the base felony qualifies as a violent felony under the list of felony crimes contained in section 667.5, then ‘ the person shall be punished by an additional term of 10 years. ’ (§ 186.22, subd. (b)(1)(C).) If the base felony qualifies as a serious felony und er the list of felony crimes contained in section 1192.7, then ‘ the person shall be punished by an additional term of five years.’ (§ 186.22, subd. (b)(1)(B)). If the base felony qualifies as neither serious no r violent, then ‘the person shall be punishe d by an additional term of two, three, or four years at the court’s discretion.’ (§ 186.22, subd. (b)(1)(A).)” ( People v. Le (2015) 61 Cal.4th 416, 422

– 423 ( Le ) .) Voluntary manslaughter is defined as both a violent felony (§ 667.5, subd. (c)(1)) and a serious felony (§ 1192.7, subd. (c)(1)).4

.

deny it for lack of jurisdiction.” The court further held that even if it reached the merits,
appellant was not enti tled to relief because he pleaded guilty in return for a specified

sentence.

Second M otion for R esentencing

On or about February 26, 2017, appellant filed , in pro. per., a nother ex parte

motion for the court to modify his sentence and argued the gang enhancement must be
stricken because of the enactment of Proposition 57.

On March 20, 2017, the superior court denied appellant’s motion. 5

5 Proposition 57 became effective on November 9, 2016, and applies retroactively “to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” ( Peop le v. Superior Court ( Lara ) (2018) 4 Cal.5th 299, 303

– 304 ( Lara ).) After the enactment of Proposition 47, “ ‘ “ [c] ertain categories of minors

... can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor ’ s maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated. ” ’ [Citation.] For minors 16 or older, prosecutors can seek transfer to criminal court for any felony offense. [Citation.] For 14 and 15 year olds, prosecutors could seek transfer to criminal court only for specified serious or violent offenses. [Citations.]” ( O.G. v. Superior Court (2021) 11 Cal.5th 82, 88

– 89.) Senate Bill 1391 was enacted in September 2018

, became effective on January 1, 2019 , and amended Proposition 57 “by eliminating the transfer of juveniles accused of committing crimes when they are 14 or 15 years old, unless they are first apprehended after the end of juvenile court juris diction. [Citations.] In this way, Senate Bill 1391 marked a return to the rule in place beginning in 1961 and for close to 34 years thereafter

– 16 again became the minimum age for transferring a minor to criminal court. [Citations.]” ( O.G. v. Superio r Court, supra , 11 Cal.5th at p. 89.) Senate Bill 1391 is retroactive to cases where the judgments were not final before the law went into effect. ( Lara, supra , 4 Cal.5th at p. 304.) Appellant was not entitled to relief under either Proposition 57 or Senate Bill 1391 because his 2003 convictions were final when both provisions became effective in, respectively, in 2016 and 2019. In addition, the abstract of judgment states appellant, born in 1983, committed count 1, voluntary manslau ghter, in 2002, and committed
count 2, attempted murder, in 2003. Appellant was

, thus

, at least 18 years old, and likely 19 and 20 years old, when he committed the two offenses and no longer a minor. ( Lara,
supra , 4 Cal.5th at p. 305.)5

.

The M otion C hallenged in the I nstant A ppeal
On July 31, 2019, appellant filed in pro. per., another ex parte motion for
resentencing, which is the subject of the instant appeal. Appellant stated the district
attorney must recall his sentence

, and the court must resentence him on the firearm and
gang enhancements attached to count 1, voluntary manslaughter, based on the enactment of provisions of section 1170, subdivision (f), “SB 2942,” 6 and People v. Le , supra,

61 Cal.4th 416 . Appellant argued the enhancements were improperly imposed as part of

his sentence for count 1.
On August 13, 2019, the court filed an order de nying appellant’s request.

“ This is not [appellant’s] first attempt to extricate himself from the plea bargain by seeking a reduction in his sentence .... Here, [appellant] c laims that the Court improperly imposed both the gun and gang enhancements for his conviction for voluntary manslaughter. [Appellant] cl aims that imposition of both enhancements is contrary to

... section 1170.1, subdivision (f). [Appellant] further alleges he ‘meets the 10 year requirement stipulated in SB. [ sic ] 2942 as it relates to the District Attorney.’ [Appellant] offers no analysis on this point. It appears [appellant] is referencing Senate Bill 2942, enacted in 2018, and which amended provision of

... section 1170, subdivision (d)(1) to permit the District Attorney to request a recall of a

... felony sentence at any time. Contrary to what is apparently [appellant’s] argument, that amendment, which took effect on January 1, 2019, did not confer on any defendant the ability to seek a recall of their sentence beyond the 120 [

- day] time limit in which the Court may, on its own motion, reca ll a sentence it has imposed. To the extent [appellant] is relying on

... section 1170, subdivision (d)(1) in seeking a ‘modification’ of his sentence, the motion is denied, as this Court has no jurisdiction to recall the sentence. ( People v. Loper (2015) 60 Cal.4th 1155, 1165, citing People v. Roe (1983) 148 Cal.App.3d 112, 118.)

“With respect to [appellant’s] other claim, that imposition of both the gun and gang enhancements violated

... section 1170.1, subdivision (f), it too is denied as [appellant] is mi staken about the law.

6 Assembly Bill No . 2942 was effective January 1, 2019 (Stats. 2018, ch. 1001, § 1), and amended section 1170 to provide the court and/or district attorney may recall the matter for resentencing under certain circumstances, none of which apply in this case.6

. “In People v. Rodriguez (2009) 47 Cal.4th 501 (hereinafter Rodriguez ), the California Supreme Court concluded that

... section 1170.1, subdivision (f) precluded imposition of both a gun enhancement [citation] and a gang

- enhancement [cit ation] , where the underlying felony became a violent felony due solely to the use of the firearm. ( Rodriguez,
supra , 47 Cal.4th 501, 509.) In People v. Le [, supra ,] 61 Cal.4th 416, the California Supreme Court extended its holding in Rodriguez to imposit ion of a gun and gang enhancement for serious felonies, where the underlying felony became serious solely due to the use of the firearm. ( People v. Le,
supra , 61 Cal.4th [at p.] 425.)

“Here [appellant’s] voluntary manslaughter conviction was, and is, a vi olent felony, irrespective of his use of a firearm. [Citation.] Consequently,

... section 1170.1, subdivision (f) did not, and does not, preclude imposition of both the gun [citation] and gang [citation] enhancements. ( People v. Vega (2013) 214 Cal.App.4t h 1387, 1395.)

“ [Appellant] persists in h is efforts to trifle with the Courts in the hopes he can better his bargain with the People, and escape punishment for his offenses. ( People v. Hester (2000) 22 Cal.4th 290, 295.)”

On October 18, 2019, appellant filed a notice of appeal from the court’s order that

denied his most recent motion for modification of his sentence.

DISCUSSION
As noted above, appellant’s counsel has filed a Wende brief with this court. The

brief also includes the declaration of appellate counsel indicating that appellant was

advised he could file h is own brief with this court. By letter on February 28, 2020, we

invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the reco rd, we find that no reasonably arguable
factual or legal issues exist. 7

7 The superior c ourt correctly summarized the holdings in Rodriguez and Le and denied relief. Rodriguez “ held that a defendant ’ s single act of personally using a gun during the commission of a felony could not be used to support both a sentence enhancement for personal use of a firearm under

... section 12022.5, former subdivision (a)(1), and to elevate the punishment for a criminal street gang allegation to a

‘ violent felony ’ under section 186.22, subdivision (b)(1)(C). We explained that the application of both enhancements in that case depended on the defendant ’ s use of a firearm, and that subdivision (f) of section 1170.1 prohibits imposing two sentence7

. DISPOSITION

The court’s order of August 13, 2019, denying appellant’s motion for
resentencing, is affirmed.

enhancements when both enhancements are ‘ “ for being armed with or using a dangerous or deadly weapon or a fi rearm in the commission of a single offense ” ’ [Citation.]” ( People v. Le, supra , 61 Cal.4th at p. 419.) Le reached the same conclusion where the defendant’s use of a firearm was the sole reason to elevate the underlying offense to a serious felony under section 1192.7 and held the defendant’s gang enhancement on the underlying offense, “ regardless of whether it qualified as a serious or violent felony under subdivision (b)(1)(B) or (b)(1)(C), is an enhancement ‘ imposed for being armed with or using

... a firearm. ’ (§ 1170.1, subd. (f).) Under section 1170.1, subdivision (f), the underlying felony

... could not be enhanced for use of a firearm both under section 12022.5, subdivision (a), and section 186.22, subdivision (b)(1). ” ( People v. Le, supra , 61 Cal .4th at p. 425.) As previously explained, appellant was convicted in count 1 of v oluntary manslaughter, an offense expressly defined as both a violent felony (§ 667.5, subd. (c)(1)) and a serious felony (§ 1192.7, subd. (c)(1)), regardless of whether a fir earm was used, and appellant was not entitled to resentencing under either Rodriguez or Le

.