People v. Newell CA6

Filed 11/5/24 P. v. Newell CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H052377 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC947978)

v.

GARY TIMOTHY NEWELL,

Defendant and Appellant.

Gary Timothy Newell appeals a post-judgment order denying his petition for resentencing under Penal Code section 1172.75. (Subsequent undesignated statutory references are to the Penal Code.) Newell’s appointed appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and People v. Wende (1979) 25 Cal.3d 436 (Wende) asking the court to independently review the record. In addition, Newell filed a supplemental brief asserting that he is eligible for relief under section 1172.75 and entitled to an evidentiary hearing. As explained below, because Newell has not been identified as someone serving a now-invalid prison prior enhancement, the trial court lacked jurisdiction to recall Newell’s sentence and resentence him under section 1172.75. We therefore dismiss the appeal.

I. BACKGROUND In July 2010, Newell was convicted of a single crime: assault with a deadly weapon other than a firearm (a knife) under section 245, subdivision (a)(1). The court found that Newell had two prior “strike” convictions. Finally, the jury found true three sentencing enhancement allegations: (1) Newell personally inflicted great bodily injury on the victim under section 12022.7, (2) Newell was on bail at the time of the offense under section 12022.1, and (3) he had a prior conviction for a serious felony under section 667, subdivision (a). After denying a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike the prior strike convictions, the trial court sentenced Newell under the “Three Strikes” law to 25 years to life in prison on the assault conviction, consecutive to a total of 10 years in prison on the enhancements. On appeal, Newell’s conviction and sentence were affirmed. (People v. Newell (July 31, 2012, H036587) [unpub. opn.].) In April 2024, Newell filed a petition for resentencing under section 1172.75, asserting that the enhancements in his sentence were not for sexually violent offenses. The trial court denied the petition because the enhancements in Newell’s sentence were not for prison priors under section 667.5, subdivision (b) and therefore did not trigger relief under section 1172.75. Newell filed a timely notice of appeal. Counsel was appointed to represent Newell and pursuant to Delgadillo and Wende filed a brief raising no arguable issues but asking this court to conduct an independent review of the record. The court notified Newell that he could submit a supplemental brief on his own behalf, which Newell did. II. DISCUSSION We conclude that the trial court lacked jurisdiction to consider Newell’s petition for resentencing. As a general rule, “ ‘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.’ ” (People v. King (2022) 77 Cal.App.5th 629, 634.) Section 1172.75 creates 2