California Court of Appeal Dec 19, 2024 No. E083714Unpublished
Filed 12/19/24 P. v. Lu CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083714
v. (Super.Ct.No. FVII18003090)
MING LIANG LU, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A.
Camber, Judge. Affirmed.
Ming Liang Lu, in pro. per.; and Jared G. Coleman, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Ming Liang Lu filed a petition requesting resentencing
pursuant to Penal Code section 1172.1,1 which the court summarily denied. On appeal,
1 All further statutory references are to the Penal Code unless otherwise indicated.
1
counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo), setting forth a statement of facts, a statement of the case, and requesting
that we independently review the record for error.
This court offered defendant the opportunity to file a personal supplemental brief,
which he has done.2 Defendant contends the court abused its discretion in declining to
reduce his sentence on his attempted murder conviction from the upper to the midterm.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND3
On January 31, 2019, a jury found defendant guilty of attempted murder (§§ 664,
187, subd. (a), count 1) and assault with a firearm (§ 245, subd. (a)(2), count 2). The jury
also found true allegations that defendant inflicted great bodily injury (§ 12022.7,
subd. (a)) and personally used a firearm, intentionally discharged it, and proximately
caused great bodily harm in his commission of the attempted murder (§ 12022.53,
subds. (b), (c) & (d)). The court sentenced defendant to a total of 22 years in state prison
including the aggravated term of nine years on the attempted murder offense. (Lu, supra,
E031035.)
2 “If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.)
3 We take judicial notice of this court’s unpublished opinion in People v. Lu (Aug. 11, 2020, E072432) (Lu), from defendant’s appeal of the judgment. (Evid. Code, § 459.)
2
Defendant appealed. By opinion filed August 11, 2020, this court affirmed the
judgment. (Lu, supra, E031035.)
On March 6, 2024, defendant submitted a form petition for resentencing pursuant
to section 1172.6. On March 19, 2024, defendant submitted a form petition for
resentencing pursuant to sections 1170 and 1170.1.4 On March 26, 2024, the superior
court indicated by minute order that it had “read and considered correspondence from
defendant regarding request for Recall of Sentence and Resentencing Pursuant to
[section] 1172.1 dated 3/18/2024.” The court summarily denied the request pursuant to
section 1172.1, subdivision (c).
II. DISCUSSION
On appeal, defendant contends that section 1172.1 enables a court to resentence a
defendant even after the judgment is final. He maintains the trial court sentenced him to
the upper term based on aggravating factors not found true by the jury. Therefore,
defendant argues the court abused its discretion in declining to reduce his sentence from
the upper to the midterm. We affirm.
“When a defendant, upon conviction for a felony offense, has been committed to
the custody of the Secretary of the Department of Corrections and Rehabilitation [CDCR]
4 The court did not officially file either petition; the indices in the clerk’s transcript reflect that they were “NOT FILED.” The indices also indicate that the latter petition was for resentencing pursuant to Assembly Bill No. 600 and section 1172.1, although neither are mentioned in the actual petition. Effective January 1, 2022, the recall and resentencing provisions of former section 1170, subdivision (d)(1), were moved to new section 1170.03 (Stats. 2021, ch. 719, §§ 1- 7), which was then renumbered as section 1172.1 effective June 30, 2022 (Stats. 2022, ch. 58, § 9).
3
. . . the court may, on its own motion, within 120 days of the date of commitment or at
any time if the applicable sentencing laws at the time of original sentencing are
subsequently changed by new statutory authority or case law, at any time upon the
recommendation of the [CDCR] or the Board of Parole Hearings in the case of a
defendant incarcerated in state prison . . . the district attorney of the county in which the
defendant was sentenced . . . recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not previously been
sentenced. . . . Recall and resentencing under this section may be initiated by the original
sentencing judge, a judge designated by the presiding judge, or any judge with
jurisdiction in the case.” (§ 1172.1, subd. (a)(1)) “A defendant is not entitled to file a
petition seeking relief from the court under this section. If a defendant requests
consideration for relief under this section, the court is not required to respond.”
(§ 1172.1, subd. (c).)
“In the context of California’s determinate sentencing scheme, Cunningham v.
California (2007) 549 U.S. 270 (Cunningham) held that, ‘under the Sixth Amendment,
any fact that exposes a defendant to a greater potential sentence must be found by a jury,
not a judge, and established beyond a reasonable doubt. . . .’ [Citation.]” (People v.
could be raised on appeal must initially be so presented”].)
Fourth and finally, section 1170, subdivision (b), applies retroactively only to
those “defendants . . . whose judgments were not final on direct appeal at the time the
statute took effect.” (People v. Lynch, supra, 16 Cal.5th at p. 742.) Defendant’s
judgment has been final since 2020, long before the effective date of section 1170 on
January 1, 2022. “Where, as here, execution of sentence has commenced and the
judgment is final, the trial court is generally ‘deprived of jurisdiction to resentence’ a
criminal defendant. [Citations.]” (People v. Hernandez (2024) 103 Cal.App.5th 1111,
1118.) Thus, defendant is not entitled to have his sentence reduced pursuant to section
1170. The court properly denied the petition.
6
III. DISPOSITION
The court’s order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
FIELDS J.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly denied the defendant's petition for resentencing because the defendant is not entitled to file a petition under Penal Code section 1172.1, and the retroactive sentencing amendments he relied upon do not apply to his final judgment.
Issues
Whether the trial court abused its discretion in denying a petition for resentencing under Penal Code section 1172.1.
Whether the defendant is entitled to retroactive application of sentencing amendments to a final judgment.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.”
“Where, as here, execution of sentence has commenced and the judgment is final, the trial court is generally ‘deprived of jurisdiction to resentence’ a criminal defendant.”