Filed 2/8/22 P. v. Chavez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Kathryn T. Montejano, Judge.

Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

In 2012, Lester Daniel Chavez pled no contest to carjacking and admitted various enhancements including four prior prison terms (Pen. Code,[1] § 667.5, subd. (b)). He was sentenced to serve 18 years in prison. Seven years later, he moved to vacate the sentence and argued the court erroneously limited his custodial credits earned to 15 percent pursuant to section 2933.1.[2] The trial court denied the motion.

On appeal, Chavez now argues the Legislature’s interim enactment of Senate Bill No. 136 (2019-2020 Reg. Sess., § 1) (SB 136) to eliminate most prior prison term enhancements applies to his case retroactively. He claims denying it retroactivity to cases final on appeal denies him equal protection under the law.

We conclude the appeal was taken from a nonappealable order. Accordingly, we will dismiss the appeal.

BACKGROUND

Charges

The Tulare County District Attorney charged Chavez with committing four crimes: Carjacking (§ 215), robbery (§ 211), vehicle theft (Veh. Code, § 10851), and assault with a deadly weapon (§ 245, subdivision (a)(1)). The charges included several allegations for prior convictions including four section 667.5, subdivision (b) prior prison term enhancements.

Change of Plea and Sentence

Chavez pled no contest to carjacking and admitted several enhancements including four prior prison terms (§ 667.5, subd. (b)). The court later struck one prior prison term and sentenced Chavez to serve an agreed upon 18 years in prison.[3]

DISCUSSION

“ ‘ “It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.” [Citations.]’ [Citation.] ‘An order made after judgment affecting a defendant’s substantial rights is appealable. (§ 1237, subd. (b).) However, once a judgment is rendered, except for limited statutory exceptions [not here applicable], the sentencing court is without jurisdiction to vacate or modify the sentence ….” (People v. Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez).) “[T]he right to appeal is limited by the qualification that, ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment.” (People v. Totari (2002) 28 Cal.4th 876, 882.) This is not an extraordinary case—Chavez could have and should have raised his challenge to the credit limitation in an original appeal from the judgment. He did not.

Judgment was rendered against Chavez on August 1, 2012. That judgment became final on October 1, 2012. Chavez filed his motion on November 1, 2019. Because the court lacked jurisdiction to grant the relief requested in the motion, the order denying the motion did not affect Chavez’s substantial rights as contemplated in section 1237, subdivision (b). (Hernandez, supra, 34 Cal.App.5th at p. 326; People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) The order denying the motion to vacate the sentence is thus not appealable and the appeal must be dismissed.[4] (People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.)

In any event, were we to address the claim’s merits, Chavez would not prevail. “ ‘[R]etroactive application of a punishment-mitigating statute is not a question of constitutional right but of legislative intent.’ ” (People v. Alexander (2020) 45 Cal.App.5th 341, 346 (Alexander).) “[S]tatutes lessening the punishment for specific offenses could [rationally] be limited to prospective application in order ‘to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written.’ ” (Hernandez, supra, 34 Cal.App.5th at p. 327, quoting In re Kapperman (1974) 11 Cal.3d 542, 546.) “This helps to ‘deflect[ ] any assumption by offenders that future acts of lenity will necessarily benefit them.’ ” (Alexander, supra, at p. 347.) “Given this basis, the retroactive application of [SB 136] to final convictions is not constitutionally compelled.” (Ibid.)

DISPOSITION

The appeal is dismissed.

* Before Poochigian, Acting P. J., Smith, J. and Snauffer, J.

[1] Undesignated statutory references are to the Penal Code.

[2] Section 2933.1 limits custodial credits earned to 15 percent of actual time served. Ordinarily, a prisoner earns 50 percent conduct credits against the sentence. (§ 2933.) Second strike offenders under the Three Strikes law earn 20 percent against the sentence. (§§ 667, subd. (c)(5) & 1170.12, subd. (a)(5).)

Section 2933.1 applies to all violent felonies defined by statute. Carjacking is a violent felony. (§ 667.5, subd. (c)(17).) Accordingly, the trial court did not err in applying the 15 percent credit limitation. Notwithstanding the motion underlying this appeal, section 2933.1 is not raised on appeal and is irrelevant.

[3] The record is unclear whether the sentence was imposed pursuant to a plea bargain or on the court’s own indication.

[4] We take caution to note Chavez filed his motion to vacate on Judicial Council form CR-187. That form relates to motions involving immigration concerns. Indeed, Chavez ambiguously checked a box indicating he was “requesting relief based on” section 1473.7. That section created a statutory motion to vacate judgments in cases involving misunderstandings with immigration consequences. In the section to “[t]ell your story,” Chavez says nothing of immigration at all. Nor is it mentioned on appeal. To be clear, a denied section 1473.7 motion is appealable. But we do not construe the present motion as a section 1473.7 motion. Rather, it appears it is a nonstatutory motion filed on the incorrect form.