Opinion
F083694
05-02-2023
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP PAUL LICHTENBERGER, Defendant and Appellant.
Moran Law Firm, Amanda K. Moran and Taylor D. Pittman for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. F18901838Michael G. Idiart, Judge.
Moran Law Firm, Amanda K. Moran and Taylor D. Pittman for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
PENA, J.
INTRODUCTION
Defendant Phillip Paul Lichtenberger filed a motion asking the trial court to modify his sentence considering evidence of his rehabilitation pursuant to Penal Code section 1172.1. (Undesignated statutory references are to the Penal Code.) The court denied the motion, stating it could not resentence defendant because more than 120 days had elapsed since sentence was imposed, and neither the Secretary of the California Department of Corrections and Rehabilitation (CDCR), the Parole Board of Hearings, nor the district attorney affirmatively requested the sentence be recalled as required for resentencing under section 1172.1. Irrespective, the court stated it would not have changed the previous sentence, noting "this was a stipulated deal," meaning the "charges were dismissed or reduced or a sentence agreed to less than the maximum of what he could have received."
Defendant appeals from the court's order, asserting sections 1170 and 1172.1 do not provide a procedure by which defendants can be heard. He seeks a declaratory judgment stating an agency's nonresponse to a defendant's request for a recommendation for resentencing should be construed as nonopposition, thereby allowing future defendants to make a claim for resentencing when their requests are ignored. Alternatively, he asks us to impose an affirmative duty on the CDCR, the district attorney's offices, and the Board of Parole Hearings to respond to section 1172.1 requests. He also argues the fact he was sentenced pursuant to a stipulated plea agreement does not bar him from sentence modification under section 1172.1. The People respond the appeal must be dismissed because it arises from a nonappealable order.
We agree with the People and dismiss the appeal for lack of jurisdiction.
BACKGROUND
On June 14, 2018, defendant pleaded guilty to one count of assault with a firearm (§ 245, subd. (a)(2)) for a stipulated term of three years and he admitted he personally used a firearm during the commission of the assault in violation of section 12022.5, subdivision (a) for an additional stipulated term of four years. He also pleaded guilty to inflicting corporal injury to his spouse in violation of section 273.5, subdivision (a) for an additional stipulated term of three years, to be served concurrently with his other terms.
Over three years later, in November 2021, defendant filed a motion asking the trial court to modify his sentence to permit him to serve the last six months of his sentence in an inpatient facility in light of evidence of his rehabilitation pursuant to former section 1170, subdivision (d)(1) (now § 1172.1). In his motion, defendant noted over 120 days had elapsed since his original sentencing. However, he argued former section 1170, subdivision (d)(1) "may be applicable" to him, and "[o]ne purpose of the instant movement, by defense, is to further delineate the process for future application and to eliminate ambiguity in the code section."
He explained he "follow[ed] the instructions imposed by [former] § 1170(d)(1) and sent out resentencing recommendation requests to the secretary of the CDCR, the Board of Parole Hearings, and the District Attorney of the County of Fresno" on June 14, 2021. He had not received a response from the Board of Parole Hearings or the district attorney at the time of the motion and asked the court to consider the lack of response as a "lack of a denial." He noted he received a response from the Secretary of the CDCR (attached to the motion), in which it stated it would "only accept and review referrals from institutional Wardens via departmental email addresses." Defendant asked the court to also consider this response as a "lack of a denial." He argued "it would be in the interests of justice to move forward with this request to the Court." In support of his motion, defendant asserted he had demonstrated personal change and growth, addressed the underlying issues that resulted in his convictions, and engaged in programming during his incarceration while never receiving a disciplinary write-up. He stated, "due to his exemplary performance in prison and his impressive central file, he has gotten his time lowered from 80% to 66%," noting his expected release date was in May 2022.
The court denied the motion, concluding it could not resentence defendant because more than 120 days had elapsed since sentence was imposed and neither the Secretary of the CDCR, the Parole Board of Hearings, nor the district attorney affirmatively requested the sentence be recalled as required for resentencing under section 1172.1. Irrespective, the court stated it would not have changed the previous sentence, noting "this was a stipulated deal," meaning the "charges were dismissed or reduced or a sentence agreed to less than the maximum of what he could have received."
DISCUSSION
On appeal, defendant invites us to address "two issues as matters of first impression": (1) whether section 1172.1 may be interpreted to allow an agency's failure to respond to a request for a recommendation for sentence modification to be treated as a nonopposition for purposes of obtaining a hearing, and (2) whether section 1172.1 may be interpreted to permit a sentence modification to a stipulated plea agreement. Defendant explains section 1172.1 permits defendants to submit letters requesting a recommendation to the CDCR, the district attorney's office, and the Board of Parole Hearings, but it "does not allow defendants to directly request a resentencing with the courts" (underscoring omitted) nor require any of the listed entities to respond to a defendant's request for a recommendation. He argues the "patte[r]n of inaction of the three agencies" in response to requests for recommendations is "contrary to the Legislative intent behind the code section," which, he contends, "clearly and unambiguously provides a mechanism for individuals demonstrating significant and substantial rehabilitation to seek" relief. He asserts, as a result, section 1172.1 "provides defendants the illusion of an opportunity to be resentenced ... without providing defendants any mechanism [by] which to enforce said code section." (Underscoring omitted.) We conclude this appeal is taken from a nonappealable order, so it must be dismissed for lack of jurisdiction.
I. Applicable Law
"'"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."'" (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) Pursuant to section 1237, a defendant may appeal from a final judgment of conviction or "any order made after judgment, affecting the substantial rights of the party." (Id., subd. (b).)
"The general rule is that 'once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence.' [Citations.] And, '[i]f the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed.'" (People v. King (2022) 77 Cal.App.5th 629, 634.)
Section 1172.1, subdivision (a)(1) provides a procedure by which a court may, "within 120 days of the date of commitment on its own motion, at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence."
II. Analysis
Defendant argues section 1172.1 (former § 1170, subd. (d)(1)) should be interpreted to allow an agency's failure to respond to a request for modification of sentence pursuant to that section to be treated as nonopposition for purposes of obtaining a hearing. He requests a declaratory judgment stating either (1) "a 'no response' to a[ section ... 1172.1] request may be treated as a 'non-opposition'" such that future defendants can make a claim for resentencing under that section "when their requests are ignored by said agencies," or (2) the CDCR, the district attorney's office, and the Board of Parole Hearings "have an affirmative duty to respond to [section 1172.1] ... requests." (Underscoring omitted.) He also asserts section 1172.1 should be interpreted to permit sentence modification involving a stipulated plea agreement. In his "Statement of Appealability," defendant contends this appeal is proper pursuant to section 1237, subdivision (b) because it follows the denial of his motion for sentence modification, which affects his substantial rights and those of similarly situated individuals (harm capable of repetition). In a footnote, he notes he is no longer incarcerated "and would not obtain any significant personal benefit following a grant of any of the requests." On reply, defendant argues he is entitled to appeal from the court's order because the trial court did not dismiss his request for lack of jurisdiction; instead, it reached the merits of his request. He further contends, if we doubt whether the order is appealable, we should, "as a general rule, vindicate jurisdiction to preserve [defendant's] right to appeal." The People assert the trial court's order on defendant's motion was not appealable because the Legislature has explicitly only authorized the Secretary of the CDCR, the Board of Parole Hearings, or the district attorney to make a request for recall and resentencing under section 1172.1. Accordingly, they contend this appeal should be dismissed or, alternatively, the court's denial of defendant's "unauthorized request should be affirmed." We agree with the People that the court's order denying defendant's request is a nonappealable order, and the appeal must be dismissed for lack of jurisdiction.
"By its terms, [former] section 1170(d) empowers a trial court to recall and vacate a prison sentence after commitment, with but two stated limitations. First, the power may be exercised only upon the court's own motion, or upon recommendation of the Director of Corrections (Director) or the Board of Prison Terms (Board). Second, to recall a sentence on its own initiative, the court must act within 120 days after it committed the defendant to prison." (Dix v. Superior Court (1991) 53 Cal.3d 442, 456.) "Cases under ... [former] section 1170(d) ... [hold] that the court loses 'own-motion' jurisdiction if it fails to recall a sentence within 120 days of the original commitment. [Citations.]" (Id. at p. 464.)
In People v. Loper (2015) 60 Cal.4th 1155, 1158, the California Supreme Court addressed whether a defendant is entitled to appeal from the denial of a request for sentence modification "when the proceeding is properly initiated by prison or parole authorities as required by law." The Loper court held, in that situation, a defendant may appeal an adverse decision on the postjudgment motion pursuant to section 1237, subdivision (b) because it affects his substantial rights, despite the fact someone else brought the original motion. (Loper, at pp. 1165, 1167.) The Loper court distinguished cases in which defendants requested resentencing pursuant to former section 1170, subdivision (d) but did so more than 120 days after the date of commitment explaining, "[b]ecause the trial courts . had no jurisdiction to resentence on their own motion, their refusal to act on a defective defense motion for resentencing could not have affected any legal rights the defendants in those cases possessed, and the appellate courts properly dismissed the appeals" for lack of jurisdiction. (Loper, at pp. 1165-1166.)
Here, the trial court did not have jurisdiction to modify the sentence on defendant's motion. (See People v. Magana (2021) 63 Cal.App.5th 1120, 1125-1126 ["because the CDCR did not recommend a recall [of the defendant's sentence], the trial court lacked authority to recall defendant's sentence" and "a defendant 'is not empowered to make a motion to recall' under [former] section 1170, subdivision (d)(1)"].) Thus, its related order was not appealable-it is not a final judgment or postjudgment order that affects defendant's substantial rights. (See People v. Chlad (1992) 6 Cal.App.4th 1719, 1724-1725 [concluding court properly denied defendant's request for sentence modification pursuant to former § 1170, subd. (d) for lack of jurisdiction, denial of motion could not have affected defendant's substantial rights, and it was not an appealable order]; People v. Gainer (1982) 133 Cal.App.3d 636, 641 [because defendant sought resentencing under former § 1170, subd. (d) without the right (standing) to, the court's denial of his request is not appealable and could not have affected a "substantial right" where none existed].)
To the extent defendant invites us to interpret the language of section 1172.1 in such a way that it would validate his right to seek modification of the judgment on his own motion more than 120 days after the date of commitment, we decline to do so. Rather, it is settled that the plain language of the statute does not confer upon a defendant such a right. (See People v. Magana, supra, 63 Cal.App.5th at p. 1126; People v. Chlad, supra, 6 Cal.App.4th at pp. 1724-1725; People v. Gainer, supra, 133 Cal.App.3d at p. 641; accord, People v. Loper, supra, 60 Cal.4th at pp. 1165-1166.) And we decline to read language into the statute that is not there. (See People v. Guzman (2005) 35 Cal.4th 577, 587 ["'insert[ing]' additional language into a statute 'violate[s] the cardinal rule of statutory construction that courts must not add provisions to statutes'"].)
Because this appeal arises from a nonappealable order, we lack jurisdiction over it and lack authority to further address the issues defendant raises. Rather, the appeal must be dismissed.
DISPOSITION
The appeal is dismissed for lack of jurisdiction.
WE CONCUR: FRANSON, Acting P. J. MEEHAN, J.