Filed 7/31/24 P. v. Bueno CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

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 d ismissed

. 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 a2

response from the court, Bueno sent a copy of that petition to the San Diego District Attorney ’ s Office . The d istrict 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 cour t would take “ no further
action. ” Bueno appeals the order , focusing entirely on Penal Code 1
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 ha d 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 ple a d ed guilty to three counts of attempted murder and admitted to firearm
and gang enhancements as to two of those counts

. He also ple a d ed 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 sec tion 1172.1, as well as multiple Senate B ills 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.3

the district attorney ’ s office. T he 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 t he 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. ”4

has commenced. ” ( People v. Kar aman (1992) 4 Cal.4th 335, 344.) In this case, execution of Bueno ’ s sentence commenced in 20 03

. Thus, the trial court had no jurisdiction to resentence Bueno in 202 3

. ( 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
lac ked jurisdiction to modify the defendant ’ s sentence, order denying motion to modify is not an appealable order].) T he trial court had no jurisdiction to

resentence Bueno , and its order declining to do so is thus no t appealable so this appeal must be dismi ssed. 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.) S ection 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 pr osecutor. ( 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 re lief 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 .)5

Here, the trial court ’ s 120

- day limit to re sentence 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, sub d. (a)(1).) The trial court found that the district attorney ’ s A ugust 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 ha d 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 recommendation6

from the district attorney to recall defendant ’ s sentence, we also ag ree 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 B ill
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, t he right to appeal is statutory and an order is not appealable unless made so by statute. ( People v. Mazu rette (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 cou rt to resentence him, an order denying his motion for resentencing7

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.