People v. Jacinto CA3

Filed 7/18/24 P. v. Jacinto CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C099936

Plaintiff and Respondent, (Super. Ct. No. STKCRFE20200005575) v.

JOSE LUIS JACINTO,

Defendant and Appellant.

Defendant Jose Luis Jacinto appeals an order denying his postjudgment motion to correct his sentence to reflect that the term imposed on a firearm enhancement he admitted was purportedly stayed. Defendant’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216, asking this court to independently review the record to determine if there are any arguable errors that would result in a disposition more favorable to defendant. Counsel acknowledges there may be an issue regarding the appealability of the order challenged. Defendant filed a supplemental brief asserting that he was sentenced to a four-year stayed term for the firearm enhancement but that the abstract of judgment fails to reflect

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the stay. In a single sentence, he also contends the firearm enhancement is no longer valid under equal protection principles. After considering the order’s appealability, we conclude the trial court lacked jurisdiction to entertain defendant’s motion and that defendant’s appeal must be dismissed. BACKGROUND In June 2020, defendant was charged with two counts of second degree robbery (Pen. Code,1 § 211; counts 1 & 2), carrying a loaded unregistered firearm (§ 25850, subd. (c)(6); count 3), and receiving stolen property (§ 496, subd. (a); count 4). For counts 1 and 2, it was alleged that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b). In October 2021, defendant pleaded no contest to count 1 and admitted an amended firearm use enhancement under section 12022.5, subdivision (a) in exchange for an aggregate term of nine years in state prison (served at 85 percent), including the upper term of five years for the robbery and the midterm of four years for personally using a firearm during the offense. The parties stipulated to the following factual basis for the plea: On June 13, 2020, defendant entered a Stockton liquor store and pointed a gun at the store clerks, demanding money; the store clerks complied out of fear and against their will by giving defendant $770 from the register. Defendant and a codefendant left the store with the money. Defendant acted with the specific intent to deprive the victims of the money taken and defendant personally used a firearm while committing the offense. The court granted the prosecutor’s motion to dismiss the remaining charges in the interest of justice.