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Filed 3/12/24 P. v. Oswald 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

LARRY GENE OSWALD, JR.,

Defendant and Appellant.

E082189

(Super.Ct.No. FWV1402748)

OPINION

APPEAL from the Superior Court of San Bernardino County. Joseph B. Widman,

Judge. Dismissed.

Larry Gene Oswald, Jr., in pro. per.; William D. Farber, under appointment by the 

Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Larry Gene Oswald appeals from the trial court’s order

denying his petition for resentencing pursuant to Senate Bill No. 81 and Assembly Bill
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No. 333. For the reasons set forth post, we hereby dismiss this case for lack of

jurisdiction.

STATEMENT OF THE CASE

On September 9, 2016, an information charged defendant with first degree murder 

with malice aforethought (Pen. Code1 § 187, subd. (a); count 1); sale or transportation of 

marijuana (Health & Saf. Code, § 11360, subd. (a); count 2); and possession of marijuana 

for sale (Health & Saf. Code, § 11359; count 3).2 As to count 1, the information also 

alleged that defendant personally used a firearm (Pen. Code, § 12022.53, subd. (b)); 

personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)); and 

personally and intentionally discharged a firearm causing great bodily injury and death 

(Pen. Code, § 12022.53, subd. (d)). In addition, the information alleged that defendant 

suffered from one prior serious or violent felony conviction (Pen. Code, §§ 667, subds.

(b)-(i), 1170.12, subds. (a)-(d)).

On June 1, 2022, pursuant to a negotiated plea agreement, the information was 

amended to add voluntary manslaughter (§ 192, subd. (a); count 6). Moreover, as to 

count 6, the amended information added allegations that defendant had a prior felony 

conviction (§§ 667, subd. (a)(1), 1170.12, subds. (a)-(d)), and that defendant personally 

used a firearm (§ 12022.5, subd. (a)). Additionally, the amended information alleged a 

criminal street gang terrorism enhancement (§ 186.22, subd. (b)(1)). Thereafter, 

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

2

 The information also named Karen Lyn Collins and Donald Collins as 

defendants. They are not parties to this appeal.
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defendant pled no contest to count 6, and admitted the prior serious felony allegation, 

personal use of a firearm allegation, and criminal street gang terrorism enhancement.

On June 29, 2022, pursuant to the terms of the negotiated plea agreement, the 

court denied probation and sentenced defendant an indeterminate term of 40 years in state 

prison as follows: upper term of 22 years on count 6 (11 years doubled under § 667, 

subd. (e)(1)); consecutive upper term of 10 years under section 12022.5, subdivision (a); 

a consecutive term of five years under section 667, subdivision (a)(1); and to a 

consecutive term of three years under section 186.22, subdivision (b). Moreover, the trial 

court dismissed or struck all the remaining counts, special allegations, and enhancements.

On April 14, 2023, defendant filed a petition for resentencing. In the petition, 

defendant asked the trial court (1) to dismiss portions of his sentence pursuant to Senate 

Bill No. 81; and (2) to vacate the three-year sentence under section 186.22, subdivision 

(b)(1) (gang enhancement) under Assembly Bill No. 333.4.

After the trial court appointed counsel to represent defendant, the People filed 

opposition. The People argued that the trial court sentenced defendant in accordance 

with the negotiated plea agreement, and after the effective date of January 1, 2022, for 
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both Senate Bill No. 813 and Assembly Bill No. 3334. The People also argued that the 

trial court lacked jurisdiction to modify defendant’s sentence because the judgment of 

conviction in his case was final when he filed his petition for resentencing.

At the hearing on defendant’s petition on July 28, 2023, the court denied 

defendant’s petition and request for relief under Senate Bill No. 81 and Assembly Bill 

No. 333. The court stated: “The Court is respectfully denying the petitioner’s motion or 

request due to lack of jurisdiction because the judgment already became final.” 

On September 21, 2023, defendant filed a timely notice of appeal.

DISCUSSION

Counsel has filed a brief under the authorities of People v. Wende (1979) 25

Cal.3d 436, Anders v. California (1967) 386 U.S. 739, and People v. Delgadillo (2022) 

14 Cal.5th 216 (Delgadillo). In the brief, pursuant to Anders, supra, appellate counsel

has identified the following issue to assist the court in its search of the record for error: 

3 Effective January 1, 2022, Senate Bill No. 81 amended section 1385 to add 

mitigating factors the trial court must consider when deciding whether to strike 

enhancements from a defendant’s sentence in the interest of justice. (Stats. 2021, ch. 

721, § 1.) Section 1385, subdivision (c), states as follows: “(1) Notwithstanding any 

other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do 

so, except if dismissal of that enhancement is prohibited by any initiative statute. [¶] 

(2) In exercising its discretion under this subdivision, the court shall consider and afford 

great weight to evidence offered by the defendant to prove that any of the mitigating 

circumstances . . . are present. Proof of the presence of one or more of these 

circumstances weighs greatly in favor of dismissing the enhancement, unless the court 

finds that dismissal of the enhancement would endanger public safety.”

4 Effective January 1, 2022, Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3) 

changed the substantive requirements for proving a section 186.22 gang enhancement by 

narrowing the definition of a criminal street gang and modifying other elements of the 

gang statutes.
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“Did the trial court err in denying appellant’s petition for sentencing relief 

pursuant to Senate Bill No. 81 and Assembly Bill No. 333 [with January 1, 2022 effective 

dates] on the ground that the judgment of conviction was final as of the April 14, 2023 

date appellant’s petition was filed, thus depriving the court of jurisdiction to recall the 

sentence.”

On January 25, 2024, we sent notice to defendant regarding the filing of a 

Delgadillo brief, as follows: “Counsel for appellant has filed a brief stating no arguable 

issues can be found. Because this is an appeal from the denial of a post-conviction 

proceeding, this court is not required to conduct an independent review of the record but 

may do so in its discretion. (People v. Delgadillo (2022) 14 Ca1.5th 216 []; People v. 

Serrano (2012) 211 Ca1.App.4th 496.) The appellant is personally granted 30 days to 

file any supplemental brief deemed necessary. If appellant files a supplemental brief, this 

court will evaluate the specific arguments presented in that brief in its opinion. 

(Delgadillo, supra, 14 Ca1.5th 216[.]) Failure to timely file a supplemental brief may 

result in the dismissal of the appeal as abandoned.” 

On February 22, 2024, defendant filed a five-page supplemental brief with 

exhibits. Although the filing of a supplement brief does not compel an independent 

review of the entire record to identify unraised issues, we have the discretion to do so. 

(Delgadillo, supra, 15 Cal.5th at p. 232.) 

In this case, at the hearing on defendant’s petition, the trial court stated:

“This case is on the Court’s calendar on the defense motion filed by the defendant 

pro per on August 14th, 2023 for relief pursuant to Senate Bill number 81 and Assembly 
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Bill number 333. I have reviewed that brief as well as the People’s opposition to relief 

filed on May 25th. The previous procedural history of the case is that the Court 

appointed counsel to represent the defendant. The Court held a hearing in which the 

Court was informed that the defendant’s preference was not to be transported from state 

prison for a hearing on the case, but that the defendant wished to be present via video. So 

the Court has made accommodations, and that’s why the defendant is here. Good 

afternoon, sir.”

“I’d also like to document for the record an exchange that I had with the attorneys 

for both sides present in open court this little while ago before we called the case. I told 

the attorneys that on the first point from the prosecution’s brief, which concerns the 

timing and the alleged late timing of the petition after the judgment had become final, I 

said that I was inclined to agree with the prosecution based upon the authorities cited 

there, but that I was open to any additional briefing that the defense wished to present on 

that point. The second point of—that the prosecution made in their brief, I told the 

parties that—I tended to agree that even if the defendant were entitled to relief, the proper 

remedy in all fairness would be to put the parties back in the same position they were 

before they entered into the plea agreement. So, essentially, to allow the plea to be 

withdrawn and allow the parties to either negotiate a different resolution or to go to trial. 

[¶] . . . [¶] The attorneys—and it was primarily [defense counsel] speaking—although, 

the prosecutor . . . was present as I stated, indicated that he did not have any legal 

authorities to present on the first point. And in his view, if the Court were to rule in favor 

of the prosecution on that first point, namely whether or not—namely that the judgment 
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was final such that relief could not be granted, then he was inclined to essentially submit 

on—but urged the Court to grant the defendant’s request nonetheless. So after that, I 

asked the defense attorney . . . whether he wished to consult with his client before the 

Court called the case, and [defense counsel] indicated he did not think it was necessary 

because the issue—kind of went without saying, but the issue was if he doesn’t have legal 

authorities to dispute the argument in section one and the Court’s inclined to go along 

with that in light of those authorities, then there really isn’t much to talk about. But 

[defense counsel] did wish and reserved the opportunity, if possible, to speak with 

[defendant] after the hearing is over so that he can explain to him essentially what 

happened from a legal perspective. Does either side wish to supplement or revise the 

summary I just made of our off-the-record discussion?”

Both defense counsel and the prosecutor agreed that the court’s summary of the 

off-the-record discussion was accurate.

Thereafter, the court stated: “So at this time in light of that summary and the 

substantive issues that were addressed, my tentative is to respectfully deny the request or 

the motion that was filed on April 14th on the grounds that the Court lacks jurisdiction to 

grant the relief sought given that the judgment in the case has already become final. 

Does either side wish to be heard on my tentative?” Both the prosecutor and defense 

counsel submitted.

The court then ruled: “The Court is respectfully denying the petitioner’s motion 

or request due to lack of jurisdiction because the judgment already became final.”
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We agree with the trial court that it lacked jurisdiction to grant defendant’s 

motion. “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 under section 

1237, subdivision (b).” (People v. King (2022) 77 Cal.App.5th 629, 739.) Under section 

1237, subdivision (b), a court’s postjudgment order is appealable “if that order affects a 

defendant’s substantial rights. An order denying a motion the court lacks jurisdiction to 

grant does not affect a defendant’s substantial rights. [Citation.] Any appeal from such 

an order must be dismissed.” (People v. Alexander (2020) 45 Cal.App.5th 341, 344.) 

Accordingly, because the trial court’s denial of defendant’s motion is not an appealable 

order, the appeal must be dismissed. 

DISPOSITION

Defendant’s appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.