People v. Devore CA2/2

Filed 8/1/22 P. v. Devore CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B317668

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA135565) v.

JASON EDWIN DEVORE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Mildred Escobedo, Judge. Reversed and remanded with directions. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent. _________________________________

Jason Edwin Devore appeals from the summary denial of his petition for resentencing pursuant to Senate Bill No. 620 (2017–2018 Reg. Sess.), which gave trial courts discretion to strike or dismiss, in the interest of justice, certain firearm enhancements alleged under Penal Code1 sections 12022.5 and 12022.53. Although appellant’s conviction was not yet final on January 1, 2018, when Senate Bill No. 620 became effective (Stats. 2017, ch. 682, §§ 1–2), the conviction was final by the time appellant sought resentencing in 2021. The superior court therefore lacked jurisdiction to entertain appellant’s resentencing petition, and the order denying it is not appealable. However, considering the appeal from this order as a petition for writ of habeas corpus (see People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 (Segura) [treating appeal as a petition for writ of habeas corpus in the interest of judicial economy]), we reach the merits of the issues presented and conclude that appellant is entitled to seek the benefits of the changes to the sentencing laws made by Senate Bill No. 620. We therefore remand the matter to the trial court for consideration of whether to exercise its discretion under Senate Bill No. 620. BACKGROUND Following a jury trial in 2016, appellant was convicted of 15 counts of robbery (§ 211) and five counts of assault on a peace officer (§ 245, subd. (d)(2)). The jury found true personal firearm use allegations (§§ 12022.53, subd. (b), 12022.5, subds. (a) & (d)) on all of the assault counts, and also found true the personal discharge of a firearm allegation (§ 12022.53, subd. (c)) on three of the assault counts. Appellant was sentenced to state prison for