People v. Hernandez

Filed 4/15/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B287551 (Super. Ct. No. 2011033571) Plaintiff and Respondent, (Ventura County)

v.

SALVADOR HERNANDEZ,

Defendant and Appellant.

Salvador Hernandez appeals from the trial court’s order denying his motion to strike personal firearm enhancements (Pen. Code, 1 § 12022.5, subds. (a) & (d)) that were imposed pursuant to a judgment that became final before the motion was filed. We conclude the challenged order is not appealable and accordingly dismiss the appeal. FACTS AND PROCEDURAL HISTORY In October 2016, Hernandez pled guilty to two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). He also admitted that he personally inflicted great bodily injury in committing one of the assaults (§ 12022.7), and personally used a

1 All further statutory references are to the Penal Code.

firearm in committing both offenses (§ 12022.5, subds. (a) & (d)). The trial court sentenced him to nine years in state prison. The sentence includes one consecutive and one concurrent three-year term for the personal firearm use enhancements. Hernandez appealed his sentence and we affirmed. (People v. Hernandez (Aug. 14, 2017, B280231) [nonpub. opn.].) He did not seek further review and the remittitur was issued on November 16, 2017. On December 15, 2017, Hernandez filed a motion in the trial court seeking to strike the firearm enhancements on the grounds that (1) in accepting his guilty plea the trial court erroneously referred to subdivision (b) of section 12022.5 rather than subdivision (d); and (2) subdivision (d) only applies to assaults with a firearm committed by means of a drive-by shooting. The motion was heard and denied on January 8, 2018. Hernandez filed a timely notice of appeal. DISCUSSION Hernandez does not challenge the trial court’s rulings on either of the claims raised in his postjudgment motion to strike his firearm enhancements. Instead, he contends the matter must be remanded for resentencing pursuant to Senate Bill No. 620, which amended section 12022.5 to give trial courts discretion to strike firearm enhancements in the interests of justice. Although those amendments went into effect shortly before Hernandez’s motion was heard, he claims the issue “is preserved for appeal” because “[o]nly after the January hearing[] did the courts decide the retroactivity of the new amendments.” He alternatively claims that trial counsel provided ineffective assistance by failing to raise the issue below.