Filed 6/6/23 P. v. Mendez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.

FRANCISCO MENDEZ

,

Defendant and Appellant. B322637

(Los Angeles County

Super. Ct. No. TA063097 )

APPEAL from an order of the Superior Court of Los

Angeles County, Sean D. Coen , Judge. Affirmed in part,

dismissed in part

. Michael C. Sampson , under appointment by the Court

of Appeal, for Defendant and Appellant.

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

Assist ant Attorney General, Susan Sullivan Pithey, Senior2

Assistant Attorney General, Noah P. Hill and Stephanie A.

Miyoshi, Deputy Attorney s General, for Plaintiff and

Respondent.

_____________________________________________

Defendant Francisco Mendez appeals from a

postjudgment order denying his petition to vacate his

murder c onviction under Penal Code section 1172.6. 1

Defendant does not challenge the merits of the postjudgment

order . I nstead , he contends for the first time in this appeal

that a por tion of his sentence is unauthorized

. The Attorney

General contends, and we agree, that we have no jurisdiction

to entertain defendant’s contention . We dismiss this portion

of defendant’s appeal and affirm the order den ying his

petition.

BACKGROUND

In 2002, a jury convicted defendant of first degree

murder (§ 187, subd. (a)) and found true the allegation that

defendant committed the murder for the benefit of , at the

direction of, or in association with a criminal street gang

(§ 186.22, subd. (b)(1) ). The trial court sentenced defendant

to 25 years to life for murder (§ 190, subd. (a))

, and a

consecutive 10 years for the true finding under the gang

enhancement statute (§ 186.22, subd. (b)(1)(C)).

1 Subsequent references to statutes are to the Penal Code.3 In his direct appeal in 2003, defendant challenged

(1) the sufficiency of evidence supporting his conviction for

murder; (2) the legality of the jury instruction on the gang

enhancement ; and (3) the sufficiency of the evidence

supporting the jury’s true finding on the gang enhancement

. We rejected these arguments and affirmed the judgment.

( People v. Francisco Mendez (Apr. 25, 2 003, B161165)

[nonpub. opn.].)

On November 1, 2021, defendant filed a postjudgment

petition to have his murder conviction vacated and to be

resen tenced on a ny remaining counts. (§ 1172.6, subd. (a).)

In his petition, defendant alleged that he was convicted of

first degree murder based on the felony

- murder rule or the

natural and probable con sequences doctrine and could not

now be convicted of murder based on changes to sections 188

and 189. The court appointed defendant counsel and

received briefing by the parties. Following a hearing, the

court found defendant had failed to mak e a prima facie case

for relief because he was neither tried nor convict ed of

murder under the felony

- murder rule or the natural and

probable consequences doctrine . The court denied the

petition

. Defendant filed a timely appeal.

DISCUSSION

Defendant does not contest the merits of the trial

court’s order denying his section 1172.6 petition

. Instead, he

a rgues for the first time in this appeal that we must correct4

an unauthorized portion of his sentence. He asserts that

under the gang enhancement statute, the court should not

have added a consecutive 10

- year term to what was already

a life sentence but instead should have imposed a minimum

term of 15 years of parole eligibility. (§ 186.22, subds.

(b)(1)(C ), (b)(5).) 2 The Attorney General acknowledges the

sentencing error , but contends that this court lacks

jurisdiction to entertain defendant’s contention . We agree

with the Attorney General.

A. The Order Denying Defendant’s Section 1172.6

Petition

Defendant filed a postjudgment petition to vacate his

murder conviction under section 1172.6

. This section

provides jurisdiction for a trial court to conduct a

resentencing proceeding to vacate convictions based on

“ felony murder or murder under the natural and probable

consequences doctrine or other theory under which malice is

2 Under the gang enhancement statute, the court must impose an

additional and consecutive term of 10 years for the commission of a

violent felony. (§ 186.22, subd. (b)(1)(C).) The court may not i mpose

an additional 10

- year term under the statute for felonies “punishable

by imprisonment in the state prison for life.” (§ 186.22, subd. (b)(5).)

For these offenses, the court must impose a minimum term of 15

calendar years of parole eligibility. ( Ib id. ) First degree murder is one

offense not subject to the 10

- year enhancement. ( People v. Lopez

(2005) 34 Cal.4th 1002, 1004, 1008.)5

imputed

. ” The procedures the trial court must follow in

conducting the proceeding are outlined in Section 1172.6

. Upon the filing of a facially sufficient petition, the trial

court must engage in a “limited” prima facie review. ( People

v. Lewis (2021) 11 Cal.5th 952, 971 ( Lewis ).) During this

stage of the proceeding, t he court “appoints counsel, if

requested; the issue is briefed; and then the court makes one

. . . prima facie determination.” ( Id. at p. 966; § 1172.6,

subd s

. (b)

- (c)

. ) If the petitioner does not establish a prima

facie case for relief under the statutory criteria, the court

must deny the petition. (§ 1172.6, subd. (b ) ; Lewis

, supra

, at

p. 971.) If the court makes a prima facie finding

, it must

issue an order to show cause

. (§ 1172.6, subd. ( c ).)

It is only after the court issues an order to show cause

that it hold s another hearing “ to determine whether to

vacate the murder

, . . . conviction and to recall the sentence

and resentence the petitioner on any remaining counts in the

same manner as if the petitioner had not previously been

sentenced

, . . .” (§ 1172.6, subd. (d)(1)

, italics added ; see

People v. Howard (2020) 50 Cal.App.5th 727, 741 [in

granting relief under section 1172.6, the court must “‘vacate

the underlying conviction and “any allegations and

enhancements attached to the conviction”’”].)

Here, d efendant filed a section 1172.6 petition to

vacate his murder conviction and any allegations and

enhancements attached to the conviction

. The court issued

an order denying his section 1172.6 petition at the prima

facie stage of review. Despite filing a notice of appeal from6

this order, defendant does not purport to challenge the

court’s prima facie inquiry or findings. We affirm the court’s

order.

B. We Lack Jurisdiction to Consider Defendant’s

Claim

Defendant’s sole contention

, raised for the first time in

this appeal

, is that the consecutive 10

- year term of

imprisonment imposed under the gang enhancement statute

constitutes an unauthorized sentence

. Defendant argues

that an unauthorized sentence may be challenged at any

time

, even on appeal from the trial court’s denial of his

section 1172.6 petition

. T he Attorney General asserts that

we lack jurisdiction to consider defendant’s contention

. We

agree.

“‘As a general rule, a criminal defendant who fails to

object at trial to a purportedly erroneous ruling forfeits the

right to challenge that ruling on appeal.’ ( People v. Anderson

(2020) 9 Cal.5th 946, 961.) But there is an exception to this

rule for an unauthorized sentence,

. . . ( In re G.C. (2020) 8

Cal.5th 1119, 1130 ( G.C

. ).) ‘The unauthorized sentence

doctrine is designed to provide relief from forfeiture for

“obvious legal errors at sentencing that are correctable

without referring to factual findings in the record or

remanding for further findings.” [Citation.] It app lies when

the trial court has imposed a sentence that “could not

lawfully be imposed under any circumstance in the7

particular case.”’ (

Anderson

, [ supra ,] at p. 962.) ” ( People v.

Moore (2021) 68 Cal.App.5th 856, 865 ( Moore ). )

“By permitting a defendant to challenge an

unauthorized sentence on appeal even in the absence of an

objection below, the unauthorized sentence rule constitutes a

narrow exception to the forfeiture doctrine ( In re Sheena K

. (2007) 40 Cal.4th 875, 886

– 887), ‘“not to the jurisdictional

requirement of a timely notice of appeal”’ or other means of

properly challenging the judgment of conviction. ( G.C.

,

supra , 8 Cal.5th at p. 1129.) In order t o in voke the

unauthorized sentence rule in the first instance, our

Supreme Court h as held the reviewing court ‘must have

jurisdiction over the judgment.’ ( G.C.

, [ supra ,] at p. 1130.)”

( Moore

, supra , 68 Cal.App.5th at p. 865 ; accord, People v.

King (2022) 77 Cal.App.5th 629, 637 ( King ) .) The

unauthorized sentence doctrine does not itself create

jurisdiction for a n appellate court to rule on the legality of a

sentence

. ( Id. at p p

. 636

- 637 ; Moore

, supra

, at p. 866 .)

Where, as here, execution of sentence has commenced

and the judgment is final, the trial court is generally

“deprived of jurisdiction to resentence” a criminal defendant.

( People v. Karaman (1992) 4 Cal.4th 335, 344, citing Dix v.

Superior Court (1991) 53 Cal.3d 442, 455; People v.

Hernandez (2019) 34 Cal.App.5th 323, 326.) To obtain

resentencing on a final judgment, a defendant must file a

petition for writ of habeas corpus ( G.C.

, supra

, 8 Cal.5th at

p. 1130)

, or proceed by way of a special statutory procedure8

(e.g., §§ 1170, subd. (d)(2), 1170.18, 1170.91, 1170.12, 1172.1,

1172.2, 1172.6, 1172.7).

A s discussed, s ection 1172.6 confers limited

, specified

jurisdiction on a trial court. (Accord, People v. Howard

(1997) 16 Cal.4th 1081, 1089 [ § 1170, subd. (d)]; People v.

Dynes (2018) 20 Cal.App.5th 523, 528 [Proposition 57];

People v. Clark (2017) 8 Cal.App.5th 863, 873 [§ 1170.126];

see Abelleira v. District Court of Appeal, Third Dist. (1941)

17 Cal.2d 280, 288 [“ [ T] hough the court has jurisdiction over

the subject matter and the parties in the fundamental sense,

it [may not have] ‘ jurisdiction ’ (or power) to act except in a

particular manner, or to give certain kinds of relief, or to act

without the occurrence of certain procedural prerequisites ”].)

P ursuant to that statute, t he court could only determin e

whether defendant made a prima facie showing that he was

convicted of first degree murder under a now invalid theory

of liability , such as the felony

- murder rule or natural and

probable consequences doctrine

. B ecause defendant’s record

of conviction refuted the allegations in his petition as a

matter of law, the court could do nothing but deny his

petition. ( Lewis

, supra , 11 Cal.5th at p. 971 ; see People v.

Harden (2022) 81 Cal.App.5th 45, 52 [“ i f the record shows

that the jury was not instructed on either the natural and

probable consequences or felony

- murder doctrines, then the

petitioner is ineligible for relief as a matter of law”] .)

In other words, t o the extent that section 1172.6

provides for resentencing, it is resentencing only for

petitioners who meet the statutory criteria for relief9

pursuant to section 1172.6

. But where no prima facie

showing has been made that the petitioner was tried or

conv icted under a now invalid theory of homicide liability

, section 1172.6 grants the trial court no power to do anything

but deny the petition. (Accord, People v. Brown (2014) 230

Cal.App.4th 1502 , 1511

- 1512 [reaching same result under

§ 1170.126 ] .) We ther efore agree with the Attorney General

that the trial court lacked jurisdiction to consider

defendant’s claim of sentencing error at this stage of the

underlying proceeding . ( See Moore

, supra , 68 Cal.App.5th at

p. 866.) 3

In sum, we conclude that the trial court lacked

jurisdiction to consider defendant’s claim of sentencing error,

and as a result, we also lack jurisdiction to entertain

defendant’s claim in this appeal. ( King

, supra

, 77

Cal.App.5th at p. 633; accord, Moore

, supra

, 68 Cal.App.5th

at p. 866.) We therefore dismiss the portion of defendant’s

appeal purporting to challenge an unauthorized sentence.

( People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 ; People

v. Turrin (2009) 176 Cal.App.4th 1200, 1208 .) D efendant is

not without recourse

, as he remains free to challenge his

3 We express no opinion on a trial court’s authority to correct an

unauthorized sentence after issuing an order to show cause and

vacating a conviction under section 1172.6, subdivision (d)

. (See People

v. Padilla (2022) 13 Cal.5th 152, 161

- 163 [ upon proof that a defendant

is entitled to resentencing on collateral review, “the result is vacatur of

the original sentence, whereupon the trial court may impose any

appropriate sentence” ].)10

sentence in a petition for a writ of habeas corpus. ( See King

,

supra

, at p. 640.)

DISPOSITION

The order denying defendant’s petition for resentencing

under section 1172.6 is affirmed

. The portion of defendant’s

appeal purporting to challenge as unauthorized the 10

- year

term of imprisonment imposed under section 186.22,

subdivision (b)(1)(C) is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MORI

, J

. We concur:

CURREY, Acting P. J.

COLLINS , J.