Opinion
B301457
01-05-2021
THE PEOPLE, Plaintiff and Respondent, v. GUADALUPE BARRAGAN, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA106907) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Dismissed. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 2010, a jury found Guadalupe Barragan guilty of first degree murder and found true personal firearm use enhancements. (Pen. Code, § 12022.53, subds. (b)-(d).) The trial court sentenced her to 25 years to life for the murder and a consecutive 25 years to life for the firearm enhancement pursuant to Penal Code section 12022.53, subdivision (d). On appeal, we modified her custody credits and affirmed. (People v. Barragan (March 8, 2012, B227931) [nonpub. opn.].)
In 2019, Barragan filed a petition to recall her sentence. She requested resentencing pursuant to Senate Bill 620 (SB 620), which provided sentencing courts with discretion to strike firearm enhancements. She recognized her case was final, but she argued the court could recall her sentence pursuant to Penal Code section 1170, subdivision (d)(1) as it was recently amended by Assembly Bill 1812. The court summarily denied the petition because "the defendant was the actual shooter in this case and admitted as much in testimony on the witness stand." Barragan appealed the order.
We appointed counsel to represent Barragan on appeal. After review of the record, Barragan's court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende). On May 19, 2020, we advised Barragan she had 30 days to submit any contentions or issues she wished us to consider.
Barragan filed a responsive brief on July 20, 2020. She argued relief was warranted because she was not the actual shooter. She recognized her case was final and she could only be resentenced upon recommendation from the Board of Parole Hearings, the secretary of the Department of Corrections and Rehabilitation, or the district attorney. She sought a court order because "there is no established legal process for obtaining a recommendation from the district attorney's office."
This court mistakenly treated her brief as a notice of appeal and dismissed it as duplicative and untimely. Without considering her brief, we issued an opinion dismissing the main appeal and issued the remittitur. We thereafter granted Barragan's motion to recall the remittitur and vacated our opinion. We resubmitted this matter on December 28, 2020. We have considered the content of Barragan's brief. --------
We have examined the entire record and Barragan's contentions. We are satisfied no arguable issues exist and Barragan's counsel has fully satisfied her responsibilities under Wende. (Smith v. Robbins (2000) 528 U.S. 259, 279-284; Wende, supra, 25 Cal.3d at p. 441; see People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
We dismiss Barragan's appeal. SB 620 does not apply to final judgments, so the trial court lacked jurisdiction to grant her petition. Because the court's order could not have affected Barragan's substantial rights, it was not an appealable order after judgment. (People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; see People v. Hernandez (2019) 34 Cal.App.5th 323, 327; People v. Johnson (2019) 32 Cal.App.5th 938, 941-942.) The amendments made by AB 1812 did not change the substantive requirements to recall a sentence under Penal Code section 1170, subdivision (d)(1), which did not permit the court to grant Barragan's petition to reopen the final judgment for SB 620 resentencing. (People v. Fuimaono, supra, at p. 134.)
DISPOSITION
The appeal is dismissed.
BIGELOW, P. J. We concur:
STRATTON, J.
WILEY, J.