People v. Hodges

Filed 6/2/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B323199 (Super. Ct. No. BA205391) Plaintiff and Respondent, (Los Angeles County)

v.

SHIRILVIN DWAYNE HODGES,

Defendant and Appellant.

Shirilvin Dwayne Hodges purports to appeal from the trial court’s order denying his motion to vacate his sentence. We appointed counsel to represent him. After an examination of the record, counsel filed an opening brief raising no issues and requesting that we independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appellant has filed two supplemental briefs, in propria persona. We will dismiss the purported appeal for lack of jurisdiction. Facts and Procedural Background The following procedural history is drawn from this court’s unpublished decision in appellant’s direct appeal from his

conviction (People v. Shirilvin Dwayne Hodges (Feb. 15, 2005, B171277) [nonpub. opn.]): In July 2001, appellant was convicted by jury of the following violations of the Penal Code: kidnapping (§ 207, subd. (a)), three counts of forcible oral copulation (§ 288a, subd. (c)(2)), two counts of assault with a firearm (§ 245, subd. (a)(2)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury further found that appellant personally used a firearm in committing all but the firearm possession offense (§§ 12022.3, subd. (a), 12022.5, subd. (a), (d), 12022.53, subd. (a)), and that he had suffered three prior serious felony convictions (§ 667, subd. (a)(1).) The trial court sentenced appellant as a third strike offender to a total term in state prison of 230 years to life. We affirmed the conviction in a nonpublished opinion. (People v. Hodges, supra, B171277.) A Habeas Petition Masquerading as a Postjudgment Motion In May 2022, appellant filed a motion to vacate his sentence on the basis that the 230 years to life sentence was unauthorized because his three prior violent or serious felony convictions under the “Three Strikes” law all arose from the same underlying case. Consequently, appellant contended he should only be sentenced as a second strike offender. This was, in essence, a petition for a writ of habeas corpus. The trial court denied relief. That should have ended this litigation. (E.g., People v. Garrett (1998) 67 Cal.App.4th 1419 [denial of a petition for writ of habeas corpus is not appealable]; see also In re Hochberg (1970) 2 Cal.3d 870, 876 [same].) Discussion Because the instant purported appeal is from an order denying postconviction relief rather than a first appeal as of right from a criminal conviction, appellant is not entitled to our