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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID DANIEL NEVAREZ,

Defendant and Appellant.

 B318952

 (Los Angeles County

 Super. Ct. No. KA041127)

APPEAL from an order of the Superior Court of 

Los Angeles County. Juan Carlos Dominguez, Judge. Dismissed.

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________________
2

BACKGROUND

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 count of burglary (§ 459). The trial court found that 

defendant had previously suffered two 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 matter for resentencing. (People v. Nevarez

(Oct. 24, 2000, B132831) [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 the prior prison term. Defendant again 

appealed, and we modified 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 the Governor signed, 

Senate Bill 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 Section 667.5, 

except for any enhancement imposed 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 motion, and defendant appeals.

1 All further statutory references are to the Penal Code 

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 dismiss defendant’s appeal 

for lack of jurisdiction.

In King, the defendant “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 sentenced to a determinate term of 105 years in 

state prison. (Ibid.) In 2021, he 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 jurisdiction to entertain [his] motion to 

vacate his sentence, 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 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.’ [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 rule 

on defendant’s motion; even though defendant’s sentence is no

longer authorized, 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 in a properly filed 
4

petition for a writ of habeas corpus.” (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 law.

2 (In re Cook (2019) 7 

Cal.5th 439, 452 [because the defendant 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 appropriate only when 

there are no other available and adequate remedies; 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 Department of Corrections and

Rehabilitation and the county correctional administrator 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 provide the name of each 

person, along with the person’s date of birth and the relevant 

case number or docket number, to the sentencing court that 

imposed the enhancement.” (§ 1171.1, subd. (b).) Subdivision (c) 

continues: “Upon receiving the information described in 

subdivision (b), the court shall review the judgment and verify 

that the current judgment includes a sentencing enhancement 

described in subdivision (a). If the court determines that the 

current judgment includes an enhancement described in 

subdivision (a), the court shall recall the sentence and resentence 

the defendant.” (§ 1171.1, subd. (c).) As is relevant here, 

subdivision (c)(2) mandates that the trial court review and 

2 We reach this decision regardless 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 December 31, 2023, well before he begins to serve 

any time on account of the now invalid enhancement.

3 It follows 

that we need not treat his appeal as a petition for habeas corpus.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

CHAVEZ

3 Thus, there is no harm in defendant either waiting for the 

California Department of Corrections and Rehabilitation to act as 

anticipated by section 1171.1 or filing a new petition for habeas 

corpus.