People v. Fuimaono

California Court of Appeal Feb 8, 2019 No. C087336Published

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Holding. The court held that the denial of a motion to modify a sentence based on Senate Bill No. 620 is a nonappealable order because the trial court lacked jurisdiction to modify a final judgment.

Issues

Whether the trial court's denial of a motion to resentence under Senate Bill No. 620 is an appealable order.

Disposition. Dismissed

Quotations verified verbatim against the opinion

“Having concluded defendant has appealed from a nonappealable order, we will dismiss the appeal.”

“Because the trial court lacked jurisdiction to modify defendant’s sentence, denial of his motion to modify his sentence could not have affected his substantial rights.”

“Accordingly, the “order denying [the] motion to modify sentence is not an appealable order,” and the appeal must be dismissed.”

Filed 2/8/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C087336

v. (Super. Ct. No. 14F04310)

ANDREW TAYLOR FUIMAONO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Jaime R. Roman, Judge. Appeal dismissed.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

Appointed counsel for defendant Andrew Taylor Fuimaono asked this court to review the record and determine whether there are any arguable issues

on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Having concluded defendant has appealed from a nonappealable order, we will dismiss the appeal. (People v. Mendez (2012) 209 Cal.App.4th 32, 34; People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) BACKGROUND On February 19, 2015, defendant was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2))1 with a true finding that he personally used a firearm during the commission of his crime (§ 12022.5, subd. (a)). On March 19, 2015, the trial court sentenced defendant to serve an aggregate term of 13 years in state prison. On May 17, 2018, defendant filed a motion to be resentenced pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620) that amended sections 12022.5, subdivision (c), and 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1 & 2, respectively). Pursuant to Senate Bill No. 620, defendant sought to have the firearm enhancement stayed. Senate Bill No. 620 amended the firearm enhancement statutes giving the trial courts discretion to strike such enhancements. The trial court summarily denied defendant’s motion, finding the amendment to section 12022.5 granting trial courts discretion to stay such enhancements did not apply to defendant because his conviction was final. Defendant appeals from that order. DISCUSSION An order made after judgment affecting a defendant’s substantial rights is appealable. (§ 1237, subd. (b).) However, once a judgment is rendered, except for limited statutory exceptions (§§ 1170.126, 1170.18), the sentencing court is without

People v. Fuimaono

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THE PEOPLE,

ANDREW TAYLOR FUIMAONO,

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