Filed 11/8/ 22 P. v. Nevarez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID DANI EL NEVARE Z

,

D efendant and Appellant. B 3 1 8952

(Los Angeles County Super. Ct. No. K

A 0 41127 )

APPEAL from an order of the Superior Court of Los Angeles County. Juan C arlos Dominguez , Judge. Dismissed

.

Richard B. Lenn on , under appointment by the C ourt o f Appeal, for Defendant and Appellant.

Rob Bonta , Attorney General, Lance E. Winters , Chief Assistant At torney General, Susan Sullivan Pithey , Assistant Attorney General, Noah P. Hill and Kathy S. Pomerantz

, Deputy Atto rneys General, for Pl aintiff a nd Res pondent.

______________________________2 BACKGROUN D
In 1999 , defendant and appellant David Daniel Nevarez

was convicted by a jury of two counts of robbery (Pen. Code, § 211 ) 1 and petty theft with a prior theft conviction ( § 666), and

one co unt of bu rglary ( § 459). The trial court found that defendant had previously suffered t w o prior “strike” convictions and one prior prison term. ( §§ 667, 667.5, subd. (b), & 1170.12.) Defendant appealed, and we affirmed the convictions but
remanded the m atter for resen tencing. ( People v. Nevarez ( Oct. 24, 2000 , B 132831 ) [nonpub. opn.], at pp. 2, 13 .) On remand, the trial court reimposed the two 25 years to life sentences running consecutively and imposed two years as
enhancements for t he prior prison ter m. Defen dant a gain appealed

, and we modi fied the judgment by striking an unauthorized term of defendant’s punishment . ( People v. Nevarez ( May 13, 2003 , B155431) [nonpub. opn.] , at p 3.) In 2021, the Legislature passed, and th e Governor signed,
S enate Bil l No. 483 ( 2021

- 2022 Reg. Sess.) (Sen. Bill 483)

. Sen. Bill 483 added section 1171.1, which renders “legally invalid” “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Sectio n 667.5, except for any enhan cement im posed for a prior conviction for a sexually violent offense[.]” ( § 1171.1, subd. (a).) Pursuant to
section 1171.1 , defendant filed a motion to strike the one

- year enhancement attributable to his prior prison term. The trial
court denied his mot ion, and defend ant appeals.

1 All further statutory refere nces are to the Penal Cod e unless otherwise indicated.3 DISCUSSION
I. We lack jurisdiction to correct the unauthorized sentence
In accordance with our recent decision in People v. King (2022) 77 Cal.App.5th 629 ( King ), we dismi ss defendant’s appeal
f or lack of jurisdiction.
In King

, the def

endant “was charged with multiple sex offenses, all committed against a single victim on one day in 1985.” ( King

, supra , 77 Cal.App.5th at p. 633.) In 1986, he was
convicted and se ntenced to a determinat e term of 105 years in state prison. (

Ibi d

. ) In 2 021, h e filed a motion to vacate an
unauthorized sentence. ( Ibid .) We held that although defendant “correctly contend[ed] that the sentence

. . . was unauthorized,

. . . the trial court had no jurisdicti on to entertain [his] motion to
vacate his s entence , and therefore this court [had] no appellate jurisdiction to entertain the appeal.” ( Ibid .) In so ruling, we noted “[t]he general rule

. . . that ‘once a judgment is rendered and execution of the senten ce has begun,
the trial court does not hav e jurisdi ction 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 suc h a motion is nonappeal able, and any appeal
from such an order mu st be dis missed .’ [Citations.]” ( King

, supra , 77 Cal.App.5th at p. 634.) Here, because defendant began serving his modified

sentence in 2003 , the trial court did not have jurisdiction to r ule
on defendant’s moti on; even though defendant’s sentence is no
l onger a uthori zed, neither do we.
II. We decline to treat this appeal as a petition for habeas corpus
In King , we noted that “a trial court may of course rule on a defendant’s challenge to an unlawful sentence i n a properly filed4

petition for a writ of ha beas co rpus.” ( King

, supra , 77 Cal.App.5th at p. 637.) Applying this principle, defendant asks that we treat his appeal as such a petition. We decline to do so as defendant has an adequate remedy at l aw

. 2 ( In re Cook (2019) 7 Cal.5th 439, 452 [becaus e the def endant had “a plain, speedy, and adequate remedy at law,” “resort[ing] to habeas corpus [was] unnecessary”]; Michelle K. v. Superior Court (2013) 221 Cal.App.4th 409, 433 [“ habeas corpus is approp riate only when

t here are no other available and ad equate re medies ; it may not be used to avoid otherwise available and adequate remedies”].) Section 1171.1, subdivision (b), provides, in relevant part: “The Secretary of the Depart ment of Corrections and
Rehabilitation a nd the county correctional adminis trator of each county shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and shall provid e the name of each

pers on, along with th e person’s date of birth and the r elevant

c ase nu mber or docket number, to the sentencing court that imposed the enhancement.” ( § 1171.1, subd. (b).) Subdivision (c) continues: “Upon receiving the information desc ribed in subdivision (b ), the court shal l review the judgment and verify

t hat the c urrent judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in
subdi vision (a), the court s hall recall the s entence and resentence
the defenda nt.” ( § 1171.1 , subd. (c).) As is relevant here, subdivision (c)(2) mandates that the trial court review and

2 We reach this deci sion rega rdless of whether the procedure set forth in section 1171.1 is exclusive.5

resentence defendant by December 31, 2023. ( § 1171.1, subd. (c)(2).) Under the express terms of the statute, defendant will be resentenced by D ecember 3 1, 202 3, well before he begins to serve any time on account of the now invalid enhancement

. 3 It follows
that w e need not treat his appeal as a petition for habeas corpus.
D ISPOSITION
The appeal i s dismissed

. NOT TO BE PUBLISHED IN THE OFFICIAL RE PORTS

.

_____________________, J. ASHMANN

- GERST

We concur:

________________________, P. J. LUI

________________________, J. CHAVEZ

3 Thus, there is no harm in defendant either waiting for the California Depart ment of Corrections and R ehabilitation to act as anticipated by section 1171.1 or filing a new petition for h abeas

corpus

.