People v. Munoz CA3

Filed 3/24/21 P. v. Munoz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C090327

Plaintiff and Respondent, (Super. Ct. No. CM023740)

v.

EDGARDO MUNOZ,

Defendant and Appellant.

Defendant Edgardo Munoz pleaded no contest in 2006 to attempted murder and admitted a firearm enhancement. He was sentenced to an aggregate term of 19 years in state prison. In 2019, long after his judgment was final, defendant petitioned to recall the sentence for the firearm enhancement pursuant to Penal Code section 1170, subdivision (d)(1).1 The trial court denied his motion. On appeal, defendant claims: (1) the trial

1 Undesignated statutory references are to the Penal Code.

1

court erred in failing to consider his post-sentencing conduct in denying defendant’s petition; (2) his counsel was ineffective in failing to object to the prosecutor’s comments at the hearing on his petition; (3) his counsel was ineffective in failing to request a supplemental probation report; and (4) the cumulative effect of these errors requires reversal and remand. The People contend that we must dismiss defendant’s appeal because the trial court lacked jurisdiction to consider his petition under section 1170, subdivision (d)(1). We will dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND The facts underlying defendant’s convictions are described in People v. Munoz (2007) 155 Cal.App.4th 160, 163-164, and we need not recount them here. In 2006, defendant pleaded guilty to attempted murder without premeditation, with a firearm enhancement (§§ 664/187, subd. (a) & 12022.5.) In exchange, the prosecution dismissed other counts and enhancements and two additional cases. (Munoz, at p. 165.) On August 22, 2006, the trial court sentenced defendant to a total term of 19 years in state prison, comprised of upper terms of nine years for attempted murder and 10 years for the firearm enhancement. (Ibid.) Following defendant’s unsuccessful appeal, this court issued the remittitur on December 19, 2007. (Id. at pp. 162-163, 169.) On July 15, 2019, defendant personally drafted, filed, and served a petition requesting the trial court to modify his sentence by striking his firearm enhancement pursuant to section 1170, subdivision (d)(1), claiming that the trial court had discretion to strike the firearm enhancement under section 12022.5, subdivision (a)(1) pursuant to the newly-enacted Senate Bill No. 620 (2017-2018 Reg. Sess.; Stats. 2017, ch. 682, §§ 1-2). Defendant argued that the court should exercise discretion to resentence him based on his good disciplinary record, rehabilitative education, and service as a camp firefighter. The prosecution objected because more than 120 days had elapsed since sentencing, among other grounds. During a hearing on the petition, defendant’s appearance was waived, and defense counsel appeared on behalf of defendant, noting that defendant authored the