People v. Castro CA2/1

Filed 5/19/22 P. v. Castro CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B316042

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA086356) v.

ERNESTO MARIO CASTRO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, David W. Stuart, Judge. Dismissed. Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ____________________________

Defendant Ernesto Mario Castro appeals from an order denying his motion to recall his sentence and resentence him pursuant to Penal Code1 section 1170, subdivision (d). Because the order is nonappealable, we dismiss the appeal.

BACKGROUND On August 16, 2016, the People charged defendant with two counts of robbery, shooting at an occupied vehicle, carrying a concealed firearm, and two counts of burglary. With respect to both robberies, the People alleged defendant personally used a firearm within the meaning of section 12022.53, subdivisions (c) and (b). On February 21, 2017, defendant pleaded no contest to one count of robbery and to shooting at an occupied vehicle. Defendant also admitted the section 12022.53, subdivision (b) enhancement. A plea form indicates that the parties agreed to a 13-year sentence, and the trial court imposed a 13-year sentence, consisting of three years for the robbery and 10 years for the section 12022.53 enhancement. The court ordered a three-year sentence for shooting at an occupied vehicle to run concurrently. The court dismissed the remaining counts. On September 21, 2021, defendant filed a motion to recall his sentence pursuant to section 1170, subdivision (d). Defendant requested the trial court strike the section 12022.53, subdivision (b) enhancement. The trial court denied the motion concluding it had no jurisdiction over the matter. In his notice of appeal, defendant argued that he “has a right to file [a section] 1170(d)(1)