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Filed 10/24/23 P. v. Hart CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DONNELL ANTHONY HART,

Defendant and Appellant.

E080958

(Super.Ct.No. FSB035746)

OPINION

APPEAL from the Superior Court of San Bernardino County. Harold T. 

Wilson, Jr., Judge. Dismissed.

Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Donnell Anthony Hart filed letters requesting that the 

court strike the prior prison term, prior serious felony conviction, and firearm 

enhancements attached to his judgment. The court denied the requests.
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After defense counsel filed a notice of appeal, this court appointed counsel to 

represent him. On appeal, defendant’s appointed counsel has filed a brief pursuant to 

People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the 

case, requesting that we exercise our discretion to independently review the record for 

error, and raising six potentially arguable issues: (1) whether the court unlawfully 

sentenced defendant on the personal use enhancements attached to his convictions for 

robbery and being a felon in possession of a firearm; (2) whether the court had 

jurisdiction to strike the prior serious felony conviction and firearm enhancements; 

(3) whether the court had jurisdiction to recall and resentence defendant pursuant to Penal 

Code section 1172.1;1(4) whether the court had jurisdiction to strike defendant’s prior 

prison term enhancement, which was based on a felony conviction that had been reduced 

to a misdemeanor; (5) whether the court had jurisdiction to strike defendant’s prior prison 

term enhancement pursuant to section 1172.75; and (6) whether the prior prison term 

enhancement could be stricken at any time as an unauthorized sentence.

We gave defendant the opportunity to file a personal supplemental brief. We 

noted that if he did not do so, we could dismiss the appeal; nevertheless, he has not filed 

one. Under these circumstances, we have no obligation to independently review the 

record for error. (Delgadillo, supra, 14 Cal.5th at pp. 224-231.) Rather, we dismiss the 

appeal for lack of jurisdiction. (People v. King (2022) 77 Cal.App.5th 629, 634 (King).)

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 All further statutory references are to the Penal Code unless otherwise indicated.
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I. PROCEDURAL HISTORY2

On or about September 2, 1999, defendant pled guilty to receiving stolen property 

under section 496, subdivision (a). The trial court granted defendant three years of 

probation. (Hart II, supra, E075912.) After defendant violated his probation on three 

separate occasions, the court sentenced him to two years in state prison.

On September 17, 2003, a jury found defendant guilty of unlawfully taking or 

driving a vehicle (Veh. Code, § 10851, subd. (a); count 1), two counts of first degree 

robbery (Pen. Code, § 211; counts 2 & 8), three counts of false imprisonment (Pen. Code, 

§ 236; counts 3, 4, & 5), second degree robbery (Pen. Code, § 211; count 6), and being a 

felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 7). The jury 

additionally found true allegations in counts 2, 3, 4, 5, and 8, that a principal was armed 

with a firearm (Pen. Code, § 12022, subd. (a)), and that defendant personally used a 

firearm in his commission of the count 6 offense (Pen. Code, § 12022.53, subd. (b)). 

(Hart I, supra, E036649.)

The court thereafter found true allegations that defendant had suffered a prior 

serious felony conviction (§ 667, subd. (a)) and prior prison term (§ 667.5, subd. (b)).3 

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 We granted defendant’s request that we take judicial notice of this court’s prior 

opinions from defendant’s appeals from the original judgment (People v. Hart (Feb. 15, 

2006, E036649) [nonpub. opn.]) (Hart I), and from a section 1170.18 petition (People v. 

Hart (Jun. 1, 2021, E075912) [nonpub. opn.]) (Hart II)). We shall refer to defendant’s 

underlying conviction in the first appeal as Hart I and his underly convictions in the latter 

case as Hart II.

3 Defendant’s prior prison term enhancement was based on his conviction and 

sentence in Hart II.
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The court sentenced defendant to a determinate term of imprisonment of 31 years eight 

months. (Hart I, supra, E036649.)

Defendant appealed the judgment in Hart I. This court affirmed. (Hart I, supra, 

E036649.)

On August 21, 2017, a case manager from the California Department of 

Corrections and Rehabilitation (CDCR) wrote the superior court a letter reflecting that 

the abstract of judgment in Hart I might be in error because it did not include counts 3 

and 4, and reflected one-third the term, instead of the full one-year term, on the prior 

prison term enhancement. On November 14, 2017, the court filed an amended abstract of 

judgment reflecting counts 3 and 4, but neglected to impose the full, one-year term on the 

prior prison term enhancement.

On January 31, 2020, defendant filed a petition under section 1170.18 (Proposition 

47) to reduce his Hart II conviction to a misdemeanor. On August 21, 2020, at the

hearing on defendant’s petition, the trial court denied the petition. (Hart II, supra, 

E075912.)

Defendant appealed. This court reversed the order, remanding the matter to the 

trial court to determine the value of the stolen property that was the subject of

defendant’s conviction. (Hart II, supra, E075912.) On July 30, 2021, the trial court 

granted defendant’s request to reduce his conviction in Hart II from a felony to a 

misdemeanor.
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On September 22, 2020, defendant filed a letter requesting that the court strike the 

firearm enhancements in Hart I. The court appointed counsel for defendant and 

repeatedly continued the matter pursuant to defense counsel’s requests. On November 4, 

2021, the People filed opposition to defendant’s request contending that the court’s 

correction of the abstract of judgment did not bestow jurisdiction upon it to grant further 

relief, and that, contrary to defendant’s arguments, the court properly imposed the 

enhancements. On February 4, 2022, the court requested formal briefing from the parties 

before it would rule.

On March 10, 2022, defendant filed a request that the court strike his prior prison 

term, prior serious felony conviction, and firearm enhancements in Hart I. On June 14, 

2022, the People filed opposition to defendant’s request contending that the court lacked 

jurisdiction to grant the relief requested because defendant’s judgment was final. On July 

29, 2022, defense counsel filed a reply to the People’s opposition maintaining that the 

court had broad discretion to strike the enhancements. After several continuances, 

defendant filed his own reply to the People’s opposition, relying on the CDCR’s letter as 

the basis for the court’s jurisdiction to grant him the relief requested.

At a hearing on March 14, 2023, defense counsel requested the court strike the 

prior prison term, prior serious felony, and firearm enhancements. The People argued the 

court lacked jurisdiction to grant the relief requested because defendant’s judgment was 

final: “Defendant was sentenced over 18 years ago. The Court no longer has 

jurisdiction, and the defendant has no standing to request this motion on his own.” The 
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court denied the requests, but denied the request with respect to the prior prison term 

enhancement without prejudice.

II. DISCUSSION

Because defendant’s judgment in Hart I was final when Proposition 47 took 

effect, the court was without jurisdiction to grant his personally filed motion to strike his 

prior prison term enhancement. (People v. Buycks (2018) 5 Cal.5th 857, 896.) Section 

1171.1, which was enacted by Senate Bill No. 483 (2021-2022 Reg. Sess.) (Stats. 2021, 

ch. 728, § 3), was signed into law in October 2021, and became effective on January 1, 

2022. It provides another procedure by which the CDCR may notify the sentencing court 

of a person in their custody who is serving a term from a judgment that includes a section

667.5 enhancement. (§ 1171.1, subd. (b).) This notification vests the trial court with 

jurisdiction to review the judgment and recall and resentence. (§ 1171.1, subd. (c).) 

While section 1171.1 applies to both final and nonfinal judgments, it does not include a 

provision permitting defendants to personally file motions seeking resentencing. 

(§ 1171.1, subd. (b).) 

Therefore, because the court had no jurisdiction to act upon the defendant’s 

personally filed request; because the CDCR’s letter to the superior court was sent long 

before both the Governor signed Senate Bill No. 483 into law and the date that law 

became effective; and because the CDCR’s letter did not recommend the striking of the 

section 667.5, subdivision (b) enhancement, the court below had no jurisdiction to act on 

that portion of defendant’s requests. Thus, similarly, this court does not have jurisdiction 
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to hear the appeal. (King, supra, 77 Cal.App.5th at p. 639 [“A trial court order denying 

relief that the court has no jurisdiction to grant does not affect a defendant’s substantial 

rights and is therefore not appealable . . . .”].) With respect to all other aspects of the 

appealed order, we decline to exercise our discretion to independently review the matter. 

(Delgadillo, supra, 14 Cal.5th. at pp. 224-231.) 

III. DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

FIELDS

J.

RAPHAEL

J.