Filed 7/3/ 24 P. v. Prado CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS CERVANTES PRADO,

Defendant and Appellant

. H051502 ( Santa Clara County Super. Ct. No. 208771 )

In 2008, a jury convicted appellant Luis Cervantes Prado of two counts of
aggravated sexual assault of a child under age 14 by rape ( Pen. Code, §§ 269, 261, subd.
(a)(2) )

. 1 The trial court sentenced Prado to an aggregate term of 60 years to life in prison

. In August 202 3
, the trial court denied Prado’s petition for resentencing

, filed on

his own behalf under various recently added or amended statutes. Prado appealed from the trial court’s denial of his petition. Prado ’s appointed
appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216
( Delgadillo )
, and Prado submitted supplemental briefing

. W e conclude the trial court lacked jurisdiction to resentence Prado pursuant to his
petition . T herefore

, we lack jurisdiction over his appeal and dismiss it.

1 Unspecified statutory references are to the Penal Code.2 I. P ROCEDURAL BACKGROUND 2

In October 1998, the Santa Clara County District Attorney charged Pra do with two
counts of aggravated se xual assault of a child under age 14 by rape (§§ 269, 261, subd.
(a)(2); counts 1 & 2), and one count of failing to register as a sex offender (§ 290, former
subd. (g)(2) ; count 3 ). Counts 1 and 2 alleged that the offense occurred “[o]n or between

Novembe r 18, 1996 and April 20, 1998,” wh en the chil d was “ [five]

, [six] years of age,

and 10 and more years younger than [Pr a do].” 3 The information further alleged that

Prado had a prior serious felony conviction for lewd conduct on a child under age 14
(§ 2 88 , subd. (a) ) that also constituted a strike. (§§ 667, subds. (b)

– (i), 1170.12.) Prado
failed to appear for trial in April 1999 , and a bench warrant issued. In December 2007,

P rado was arrested on the bench warrant in Phoenix, Arizona

. In October 2008, the jury found Prado guilty of the aggravated sexual assault
charges (counts 1 & 2 ). 4 The jury further found true the allegations concerning Prado’s
prior conviction for lewd conduct on a child (§ 2 88 , subd. (a) )

. The trial court denied

Prado’s Romero 5 motion to strike the prior conviction.

In April 2009, the trial court sentenced Prado to prison for 60 years to life

, comprising 1 5 years to life on each of the two c ount s of conviction

, consecutive and

doubled

. 6
Prado appealed , and i n August 2010, a panel of this court affirmed the judgment.

2 The facts of the underlying offenses are not relevant to this appeal. We glean this background information from the record on appeal and th is court’s prior unpublished opinion in Prado’s direct appeal

, People v. Prado (Aug. 9, 2010, H034138 ). On our own motion, w e take judicial notice of th at opinion

. ( See Evid. Code, §§ 452, subd

. (d), 459 .)

3 The probation officer’s report states that Prado was born in 1968.
4 Count 3 (failing to register) was not submitted to the jury

, and the trial court later dismissed that count

.

5 People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497

. 6 S ection 269 , subdivision (b) mandates that a violation of the section “shall be punished by imprisonment in the state prison for 15 years to life

. ”3

More than one year later, in November 2011, the trial court issued an amended
abstract of judgment. It appears from the amended abstract that the court only modified
the judgment to add an order for AIDS test ing (§ 1202.1).

In June 2023, Prado filed on his own behalf a “Petition for Resentencing Pursuant
[to] All Applicable Sections of Penal Code § 1170, § 1171, § 1172 and Assembly Bill
[ No. ] 1540 (2021)” (petition). 7 In the body of his petition

, Prado request ed recall of his

sentence and resentenci ng under Assembly Bill No. 1540 (2021

– 2022 Reg. Sess.)
( Assem bly Bill 1540) , Assembly Bill No. 124 (2021

– 2022 Reg. Sess.) ( Assem bly Bill
124)
, Senate Bill No. 567 (2020

– 2021 Reg. Sess.) ( Sen ate Bill 567)

— which “collectively
amended[] and added to [ section ] 1170 ”

— and Senate Bill No. 483 (2021

– 2022 Reg.
Sess.) ( Sen ate Bill 483)

— which added former section 1171.1 (current § 1172.75)
concerning prior prison term enhancements (§ 667.5, subd. (b))

. He also reque sted the appointment of counsel “for all further proceedings” and “to be present every time [the] case is brought before the court.” Additionally, Prado cited and described the following

laws “for all possible applicability”: Senate Bill No. 1393 (2017

– 2018 Reg. Sess.)
( Sen ate Bill 1393) , Senate Bill No. 620 (2017

– 2018 Reg. Sess.) ( Sen ate Bill 620)
, Senate

Bill No. 775 (2021

- 2022 Reg. Sess.) ( Sen ate Bill 775)

, Assembly Bill No. 256 (2021

– 2022 Reg. Sess.) ( Assem bly Bill 256)

, Senate Bill No. 81 (2021

– 2022 Reg. Sess.)
( Sen ate Bill 81) , and Assembly Bill No. 960 (2021

– 2022 Reg. Sess.) ( Assem bly Bill
960) . He also cited Assembly Bill No. 333 (2021

– 2022 Reg. Sess.) ( Assem bly Bill 333)

and Senate Bill No. 73 (2021

– 2022 Reg. Sess.) ( Senate Bill 73) “for the court to apply if he is eligible.”

7 The record includes another

, earlier petition for resentencing ( filed in September 2022) under section 1170
, former subdivision (d) and Assembly Bill No. 1540. T he trial court denied that petition in a written order dated October 22, 2022 , reasoning that its jurisdiction to resentence Prado had expired long ago, namely 120 days after entry of the judgment. Nothing in the record indicates that Prado appealed from that order.4

On August 18, 2023, the trial court issued a written order denying Prado ’s
petition

. 8 In its order, t he court provided the following reasons for concluding that the

laws Prado cited in his petition did not p rovide him any ground for relief : T he 120

- day

timeframe for the court to recall Prado ’s sentence had long passed ( see former § 1170.03
[ added by Assem. Bill 1540 ; su bsequently renumbered as § 1172.1 and amended ] ) and

Assem bly Bill 1540 did not grant trial courts the authority to reopen an otherwise final
judgment

. 9 Assem bly Bill 124 (which amended § 1170) does not provide relief because

Prado ’s judgment is final

. Neither Sen ate Bill 567 nor the amend ment s to section 1170,
subdivision (b) appl y to Prado ’s final judgment

. Prado did not suffer a qualifying prior
prison term enhancement under Sen ate Bill 483 or section 1172.75. Sen ate Bill 1393
(which amended §§ 667 and 1385) does not apply retroactively to Prado ’s final judg ment.

Prado did not suffer a qualifying firearm enhancement under Sen ate Bill 620

. Prado was
not convicted of a qualifying crime (i.e., murder, attempted murder

, or manslaughter)
addressed by Sen ate Bill 775 (see former § 117 0

. 95 [subsequently renumbered as § 1172.6 ( Stats. 2022, c h . 58

, § 10 ) ])

. Und er Assem bly Bill 256 (which amended

section 745 [part of the California Racial Justice Act of 2020])

, Prado “is currently
serving a sentence based upon the final judgment .

. . and ha s not set forth the requisite
showing for relief under section 745, subdivision (a)(1) through (a)(4). ” Sen ate Bill 81’s
amendment to section 1385 is inapplicable to Prado because the amendment only applies
to sentencing hearings occurring after January 1 , 2022. 10 Section 1172.2 (added by

8 The trial court’s order did not specifically address whether i t had jurisdiction to entertain each of the grounds stated in Prado ’s petition

. Moreover, n othing in the record indicates that the trial court appointed counsel to represent Prado on his petition or held
any hearing on the petition.

9 We note that e ffective January 1, 2024, section 1172.1 allows the trial court, o n its own motion, to recall and resentence a defendant at any time if the sentencing laws applicable at the time of original sentencing are changed by new statutory authority or case law. ( § 1172.1, subd. (a); Stats. 2023, ch. 795, § 1.5.)

10 Sen ate Bill 81 amended section 1385 to add subdivision (c)

, pertaining to enhancements. (Stats. 2021, ch. 721, § 1.) Th at subdivision lists specific mitigating5

Asse mbly Bill 960) does not provide Prado any entitlement to relief because the
preliminary procedural requirements for compassionate release under that section have

not been met. Assem bly Bill 333 does not provide Prado any relief because he did not

suffer a conviction under section 186.22 for an active participation gang crime or a gang

related crime enhancement

. Lastly, Senate Bill 73 is not applicable to Prado’s case

because he was not convi cted of any offense r elating to controlled substance s affected by

that bill.
On October 2, 2023, Prado filed a notice of appeal from the order denying his
petition and request ed a certificate of probable cause. The trial court granted Prado ’s

request for a certificate of probable cause.
This court appointed counsel to represent Prado on appeal. Prado ’s appointed
appellate counsel filed a brief pursuant to De l gadillo

, supra , 14 Cal.5th 216. The brief
raises no arguable issues for appeal but asks this court to conduct an independent review

of the record

. Regarding appealability, Prado ’s app ellate counsel states : “ If Senate Bill 1393 or
other authority authorized the trial court to grant [Prado ’s petition] , the order is an
appealable order o f the superior court in a felony case. ( [] § 1237, subd. (b); but see
People v. King (2022) 77 Cal.App.5th 629, 637 [following loss of trial court jurisdiction
over sentence, petition for writ of habeas corpus required to present unauthorized
sentence claims to trial court].) ” (Fn. omitted.)
After appellate counsel filed the De l gadillo brief, w e notified Prado that he could

submit a supplemental brief on his own behalf within 30 days. Having not received a supplemental brief from Prado, on April 4, 2024, this court dismissed the appeal as

abandoned. Thereafter, appellate counsel reques ted that we withdraw our dismissal order

factors a court must consider when decidi ng whether to strike an enhancement from a defendant ’ s sentence in the interest of justice. (§ 1385 , subd. (c); People v. Burke (2023) 89 Cal.App.5th 237, 242

– 243.)6

and review a hand w ritten brief that Prado had served on appellate counsel but failed to

send to this court

. On April 17, 2024, w e vacated the dismissal

. In his brief

ing

, Prado states that the trial court failed to follow the procedural
requirements set forth in Assem bly Bill 1540 (current § 1172.1) , including by failing to

hold a hearing or appoint counsel. Prado also seems to invoke section 1172.75 as a ground for a hearing and rese ntencing.

II. DISCUSSION
Where, as here, appellate counsel finds no arguable issues in an appeal from the
denial of a postconviction request for relief, we are not required to conduct an
independent review of the record. (See Delgadillo

, supra , 14 Cal.5 th at pp. 22 4

– 2 31 .)
We give the defendant the opportunity to file his or her own supplemental brief and we
then evaluate any specific arguments raised. ( Id . at pp. 231

– 232.) As noted ante , Prado

has submitted supplemental brief ing

. F or the following reasons, we conclude th e trial court’s order denying Prado’s
petition is not appealable and we thus lack jurisdiction to consider the arguments raised
by Prado in his supplemental brief. “Because an appealable judgment or order is essential to appellate jurisdiction, the
appella te court must consider the question of appealability sua sponte, and dismiss the appeal if the judgment or order is found to be nonappealable.” ( People v. Clark (2021)
67 Cal.App.5th 248, 254 ; accord, People v. Miller (2006) 145 Cal.App.4th 206, 212 .)

“In general, ‘ “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.” ’ ”
( People v. Cota (2023) 97 Cal.App.5th 318, 329, quoting People v. King
, supra , 77
Cal.App.5th at p. 634 ( King ) ; accord, People v. Gray (2024) 101 Cal.App.5th 148, 164.)

There are some exceptions to this rule. ( See Cota
, at p. 329 ; King , at p. 637 ; Gray , at

pp. 164

– 165.) However, Prado ’s sentence began to run more than a decade be fore he
filed his petition, and he has not identified any exception that appl ies to his case

. In other7

words , none of the laws that Prado cited in his petition as a potential ground for relief
applied when the trial court considered and denied his petition.
Regarding Sen ate Bill 1393 (which appellate counsel mentioned as a potential
ground for appealability), that bill, “ef fective January 1, 2019, amend [ed] sections 667 [,

subdivision (a) ] and 1385 [, subdivision (b) ] to allow a court to exercise its discretion to
strike or dismiss a prior serious felony conviction for sentencing purposes. [Citation.]

Under the [prior] versi ons of these statutes, the court [was] required to impose a five

- year
consecutive term for ‘ any person convicted of a serious felony who previously has been
convicted of a serious felony ’ (§ 667 [, former subd.] (a ) ), and the court ha [d] no
discretion ‘ to s trike any prior conviction of a serious felony for purposes of enhancement

of a sentence under [s] ection 667. ’ (§ 1385 [, former subd

. (b).) ” ( People v. Garcia
(2018) 28 Cal.App.5th 961, 971 .) In this case, however, Prado’ s sole prior conviction for

lewd conduct on a child (§ 2 88 , subd. (a) ) was not alleged as a prior serious felony

conviction for the purposes of imposing a five

- year sentencing enhancement under
section 667, former subdivision (a)

. Thus, Sen ate Bill 1393 does not apply.
Because none of the exceptions to the general rule apply here , the trial court
lacked jurisdiction to modify P r ado’s sentence when it ruled on his petition for
resentencing

. The denial of a petition that the trial court has no juri sdiction over “does

not affect a defendant ’ s substantial rights and is therefore not appealable under section 1237, subdivision (b).” ( King
, supra , 77 Cal.App.5th at p. 639; see People v. Fuimaono
(2019) 32 Cal.App.5th 132, 135 ; People v. Turrin (2009) 17 6 Cal.App.4th 1200, 1208 ; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725

– 1726 ; see also People v. Loper (2015) 60 Cal.4th 1155, 1159 [“The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by

statute.” ] .) Given this conclusion, we must dismiss this appeal. ( Fuim aono , at p. 135 ;

Turrin , at p. 1208 ; King , at p. 634 .) In turn
, the contentions in Prado’s supplemental
briefing are moot

, and we do not address them.8 III. DISPOSITION The appeal is dismissed.______________________________________ D anner, J.

WE CONCUR:

____________________________________ Bamattre

- Manoukian

, Acting P. J.

____________________________________ Bromberg, J.

H05 1502 People v. Prado