Filed 7/31/24 P. v. Bueno CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FIDEL JUNIOR BUENO III,

Defendant and Appellant.

 D083046

 (Super. Ct. No. SCD168469)

APPEAL from an order of the Superior Court of San Diego County, 

John M. Thompson, Judge. Appeal dismissed.

Tonja R. Torres, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Collette C. Cavalier and Christopher P. Beesley, Deputy Attorneys General, 

for Plaintiff and Respondent. 

INTRODUCTION

Fidel Junior Bueno III brought a petition for resentencing under a 

variety of statutes, Senate Bills, and Assembly Bills. After not receiving a 
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response from the court, Bueno sent a copy of that petition to the San Diego 

District Attorney’s Office. The district attorney’s office forwarded the petition 

to San Diego Superior Court with a brief cover letter. The superior court 

issued an order denying the petition without prejudice, explaining why Bueno 

was not entitled to relief and indicating that the court would take “no further 

action.”

Bueno appeals the order, focusing entirely on Penal Code1

section 1172.1 and arguing the court improperly concluded it lacked 

jurisdiction to hear the petition under that statute. Because we conclude the 

trial court had no jurisdiction to recall Bueno’s sentence, the order denying

his petition and taking no further action was not an appealable order. We 

therefore dismiss the appeal. 

FACTUAL AND PROCEDURAL BACKGROUND 

The underlying facts of Bueno’s crime are immaterial to the issue 

raised on appeal. Suffice it to say, in 2002, he attempted to kill three 

different individuals and fired a gun at an occupied dwelling. In 2003, Bueno 

pleaded guilty to three counts of attempted murder and admitted to firearm 

and gang enhancements as to two of those counts. He also pleaded guilty to 

shooting at an inhabited building. The court sentenced Bueno to 40 years in 

state prison. 

In 2023, Bueno filed a petition for resentencing under a variety of 

statutes, including section 1172.1, as well as multiple Senate Bills and 

Assembly Bills, in which he claimed to be entitled to sentencing relief under 

various, new ameliorative sentencing laws. A few months later, having heard 

nothing from the superior court on his petition, Bueno filed another copy of 

the petition with a request for ruling. He also sent a copy of the petition to 

1 Statutory references are to the Penal Code unless otherwise specified.
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the district attorney’s office. The district attorney’s office then sent a letter to 

the superior court, notifying it of Bueno’s petition, appending a copy of the 

petition to the letter, and referring the petition to the court for action.2

In September of 2023, the court filed an order denying the petition

without prejudice. In doing so, the court detailed why the various statutes 

and changes in the sentencing laws did not apply to Bueno. Moreover, as 

relevant to the arguments Bueno raises here, the court rejected Bueno’s claim 

that the district attorney’s letter served as a recommendation for sentence 

modification under section 1172.1. To this end, the court stated: “As more 

than 120 days has elapsed since the date of commitment and no 

recommendation for recall of sentence has been submitted, the court finds it 

does not have the legal authority to modify the sentence.”

In addition, toward the end of the minute order, the court underscored:

“Based on the foregoing, no further action will be taken on Defendant’s 

motion for modification of his sentence.”

Bueno timely filed a notice of appeal. 

DISCUSSION

Bueno contends that the district attorney’s letter notifying the court of 

his resentencing petition served as a request for resentencing in accordance 

with the procedure required by section 1172.1. The People disagree,

asserting that the district attorney’s letter was merely a generic notification 

letter. We agree with the People. 

“Under the general common law rule, a trial court is deprived of 

jurisdiction to resentence a criminal defendant once execution of the sentence 

2 Specifically, the letter stated: “The petition was received by the Office 

of the District Attorney and based on the requests made it should be referred 

to the court for action.”
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has commenced.” (People v. Karaman (1992) 4 Cal.4th 335, 344.) In this 

case, execution of Bueno’s sentence commenced in 2003. Thus, the trial court 

had no jurisdiction to resentence Bueno in 2023. (Ibid.) And, if the trial 

court had no jurisdiction to resentence defendant, then its order denying 

resentencing “ ‘is nonappealable, and any appeal from such an order must be 

dismissed.’ ” (People v. King (2022) 77 Cal.App.5th 629, 634; see also

People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 [because trial court 

lacked jurisdiction to modify the defendant’s sentence, order denying motion 

to modify is not an appealable order].) The trial court had no jurisdiction to 

resentence Bueno, and its order declining to do so is thus not appealable so

this appeal must be dismissed.

There are exceptions to the common law rule that the trial court is 

deprived of jurisdiction to resentence a defendant once execution of the 

sentence has commenced, and section 1172.1 is one such exception. (People v. 

King, supra, 77 Cal.App.5th at p. 637.) Section 1172.1 establishes a court’s 

authority to recall a sentence and to resentence a defendant. (Ibid.)

Subdivision (a)(1) specifically provides that within 120 days or at any time 

there has been a change to the sentencing law in effect at the time of 

judgment, the court can, on its own motion, recall the sentence; and it can 

recall the sentence any time upon the recommendation of the correctional 

administrator where the defendant is housed, or upon the recommendation of 

the prosecutor. (Id., subd. (a)(1).) Thus, the only authorized petitioners for 

sentencing recall are the correctional administrators and prosecutors. (Ibid.) 

Additionally, pursuant to subdivision (c), a defendant is not entitled to file a 

petition seeking relief from the court. (Id., subd. (c).) And if a defendant does 

file such a petition, the court need not take any action in response to it. 

(Ibid.)
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Here, the trial court’s 120-day limit to resentence Bueno had long 

passed and the court had not recalled Bueno’s sentence under its own motion 

based on a change in the sentencing laws. Therefore, the trial court could 

only act upon the recommendation of the Department of Corrections and 

Rehabilitation (CDCR) or the district attorney. (§ 1172.1, subd. (a)(1).) The 

trial court found that the district attorney’s August 10, 2023, letter was not a 

recommendation for resentencing made pursuant to section 1172.1, and we 

agree. The letter was sent by the district attorney to the superior court only 

after Bueno sent his petition to the district attorney because Bueno had not 

yet heard from the court. Moreover, the letter does not mention, cite, or 

quote section 1172.1, and it does not recommend that the trial court recall 

defendant’s sentence and resentence him under the current law. This makes 

sense because the petition did not rely on only section 1172.1, but on multiple 

statutes and changes to the law. Thus, a generic cover letter as used by the

district attorney’s office here was no more than providing a courtesy copy of a 

petition that Bueno had sent to it. Indeed, the letter does not contain the 

words “recall,” “resentence,” or any variations thereof.

In People v. Magana, the court found a similar letter from the 

Department of Corrections and Rehabilitation did not constitute a 

recommendation that a defendant’s sentence be recalled because it did not 

reference section 1172.1, it did not use the terms “ ‘recall’ ” or 

“ ‘resentencing,’ ” and it merely asked the trial court “to determine whether 

‘a correction is required.’ ” (People v. Magana (2021) 63 Cal.App.5th 1120, 

1125; see also People v. Humphrey (2020) 44 Cal.App.5th 371, 373, 378 [letter 

from CDCR stating abstract of judgment “ ‘may be in error’ ” “made no 

reference to the court’s authority to recall the defendant’s sentence 

under section [1172.1]”].) Because we agree there was no recommendation 
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from the district attorney to recall defendant’s sentence, we also agree the 

trial court had no jurisdiction to resentence defendant pursuant to

section 1172.1. The court had not, on its own motion, sought to resentence 

Bueno based upon changes in the law. (See § 1172.1, subd. (a).) Additionally, 

Bueno was not entitled to petition for relief under section 1172.1, and the 

court did not have to respond to Bueno’s petition. (Id., subd. (c).) Because 

the court lacked jurisdiction to address Bueno’s petition under section 1172.1 

and the court chose not to respond further to the petition, Bueno is 

attempting to appeal an unappealable order. As such, his appeal must be 

dismissed.

In addition, our analysis does not change if we consider Assembly Bill 

No. 600 (2023-2024 Reg. Sess.) as Bueno urges us to do. Assembly Bill 

No. 600 was enacted on January 1, 2024 and amended section 1172.1 to allow 

a court, on its own motion, to recall and resentence a defendant “at any time 

if the applicable sentencing laws at the time of original sentencing are 

subsequently changed by new statutory authority or case law . . . .” (§ 1172.1 

subd. (a)(1).) However, Bueno does not point to any change in sentencing law 

that was applicable to him that would allow the court to recall and 

resentence him under revised section 1172.1. Thus, he has not shown that 

the court had jurisdiction under section 1172.1, subdivision (a)(1) as revised 

by Assembly Bill No. 600.

In summary, the right to appeal is statutory and an order is not 

appealable unless made so by statute. (People v. Mazurette (2001) 

24 Cal.4th 789, 792.) In a criminal case, a defendant may appeal “any order 

made after judgment, affecting [his] substantial rights.” (§ 1237, subd. (b).) 

Where the provision of law invoked by the defendant does not authorize the 

trial court to resentence him, an order denying his motion for resentencing 
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does not affect his substantial rights and is not appealable. (See People v. 

Dynes (2018) 20 Cal.App.5th 523, 528; People v. Turrin (2009) 176 

Cal.App.4th 1200, 1208; People v. Chlad (1991) 6 Cal.App.4th 1719, 

1725–1726.) 

Because more than 120 days has passed, there was no recommendation 

for resentencing, and no sentencing laws relevant to Bueno’s sentence have 

changed, the order denying the motion for resentencing does not affect 

Bueno’s substantial rights and is not appealable.

DISPOSITION

The appeal is dismissed.

HUFFMAN, Acting P. J.

WE CONCUR:

KELETY, J.

CASTILLO, J.