People v. Castillo CA2/4

Filed 10/20/20 P. v. Castillo CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B301408

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A706749) v.

REFUGIO B. CASTILLO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Dismissed Lori A. Quick, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

BACKGROUND In 1988, a jury convicted appellant Refugio Castillo of kidnapping for ransom (Pen. Code, § 209, subd. (a))1, kidnapping (§ 207), conspiracy (former § 182, subd. (1)), and two counts of second degree robbery (§§ 211, 212.5). The jury also found that appellant used a firearm during the commission of the simple kidnapping and robberies (§ 12022, subd. (a)). The trial court imposed a sentence of life without the possibility of parole plus six years. At the time appellant was sentenced, a trial court had no power to strike a firearm enhancement. (See People v. Thomas (1992) 4 Cal.4th 206, 213.) In October 2017, Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620) was enacted; it became effective on January 1, 2018. (Stats. 2017, ch. 682.) SB 620 gives a trial court discretion to strike a firearm enhancement under section 12022.5. (§ 12022.5, subd. (c).) On June 25, 2019, appellant filed a request for resentencing, citing SB 620. He contended the sentence he received violated the Eighth Amendment prohibition against cruel and unusual punishment. The trial court denied the request on June 28, 2019, noting that the judgment was “final prior to the January 1, 2018 effective date of SB 620” and appellant had not shown entitlement to resentencing under any other law. Appellant appealed. However, under the “prison delivery rule” approved in In re Jordan (1992) 4 Cal.4th 116, 118- 119, a prisoner’s notice of appeal is deemed timely filed if it is delivered to prison authorities within the 60-day filing period set forth in Rule 8.308.