People v. Fullmore CA3

Filed 3/10/23 P. v. Fullmore CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C097204

Plaintiff and Respondent, (Super. Ct. No. 09F06445)

v.

DAVID EDWARD FULLMORE,

Defendant and Appellant.

Appointed counsel for defendant David Edward Fullmore asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) However, because defendant has appealed from a nonappealable order, we will dismiss the appeal. (People v. Mendez (2012) 209 Cal.App.4th 32, 34; People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.)

1

BACKGROUND On March 11, 2011, a jury convicted defendant of three counts of second degree robbery (Pen. Code, § 211;1 counts one through three) as well as false imprisonment (§ 236; count four). The jury also found true allegations that defendant had personally used a firearm (§ 12022.53, subd. (b)) in the commission of counts two and three and that defendant had personally used a firearm (§ 12022.5, subd. (a)(1)) during the commission of count four. In a bifurcated proceeding, the trial court determined defendant had suffered two prior strikes. (People v. Fullmore et al. (Nov. 13, 2013, C068389) [nonpub. opn.].) The trial court struck one of defendant’s prior strikes and sentenced him to an aggregate prison term of 37 years. We upheld this judgment in an unpublished opinion issued in 2013. (Ibid.) On September 19, 2022, defendant filed a petition in propria persona for resentencing under former section 1170. Defendant’s petition referenced numerous legislative enactments, as well as a “Vargas motion (juvenile strike)” and a “Romero Motion to (strike my juvenile strike) juvenile adjudication.” While the petition generally referenced changes made to the trial court’s discretion to impose a sentence exceeding the midterm, legislation invalidating prior prison enhancements, and amendments requiring dismissal of an enhancement if it is in the furtherance of justice, the petition did not request specific relief. On October 12, 2022, the trial court dismissed defendant’s petition on the grounds the court was without jurisdiction to modify defendant’s sentence. Defendant timely appealed.