California Court of Appeal Dec 21, 2023 No. E080979Unpublished
Filed 12/21/23 P. v. Lopez CA4/2 See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080979
v. (Super.Ct.No. FWV21002678)
JOSE FELIX LOPEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Richard V. Peel,
Judge. Dismissed.
Jose Felix Lopez, in propria persona; and Shay Dinata-Hanson, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Jose Felix Lopez appeals the denial of his Penal Code section 1172.11 petition for
resentencing. After his counsel filed a no-issue brief under People v. Delgadillo (2022)
14 Cal.5th 216 (Delgadillo), Lopez filed his own supplemental brief. Because we lack
jurisdiction to consider his appeal, we dismiss.
BACKGROUND
In 2022 Lopez pled guilty to second degree robbery (§ 211) and admitted he used
section 1170.03 to section 1172.1, but made no substantive changes.” (People v. Salgado
(2022) 82 Cal.App.5th 376, 378, fn. 2.)
Under section 1172.1, a “court may, within 120 days of the date of commitment
on its own motion, at any time upon the recommendation of the secretary or the Board of
Parole Hearings in the case of a defendant incarcerated in state prison, the county
correctional administrator in the case of a defendant incarcerated in county jail, the
district attorney of the county in which the defendant was sentenced, or the Attorney
General if the Department of Justice originally prosecuted the case, recall the sentence
and commitment previously ordered and resentence the defendant in the same manner as
if they had not previously been sentenced . . . .” (§ 1172.1, subd. (a)(1).) Thus, only a
court, the Secretary of the Department of Corrections and Rehabilitation, the Board of
3
Parole Hearings, a county correctional administrator, a district attorney, or the Attorney
General may recommend or otherwise seek resentencing under section 1172.1. The
statute does not authorize the defendant themselves to recommend or seek resentencing.
Because of this, courts considering former section 1170, subdivision (d)(1), which
used to contain the resentencing provisions now contained in section 1172.1, have held
that it did not permit the inmate to move for recall and resentencing. “Section 1170
subdivision (d) does not confer standing on a defendant to initiate a motion to recall a
sentence.” (People v. Pritchett (1993) 20 Cal.App.4th 190, 193.) “Consequently, the
courts have uniformly held that an order denying a defendant’s request to resentence
pursuant to section 1170 subdivision (d) is not appealable as an order affecting the
substantial rights of the party . . . because the defendant has no right to request such an
order in the first instance.” (Id. at p. 194, italics omitted.)
It follows that we lack the authority to render a decision on the merits of appeals
from a defendant’s attempt to seek resentencing under section 1172.1. (People v.
Hernandez (2019) 34 Cal.App.5th 323, 326.) Accordingly, we dismiss the appeal.
DISPOSITION
We dismiss the appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J. I concur:
FIELDS J.
4
[People v. Lopez, E080979]
RAMIREZ, P.J.
I respectfully dissent. Our Supreme Court has afforded reviewing courts
discretion with respect to the disposition of postconviction appeals in which appointed
appellate counsel has filed a no-issues brief. (People v. Delgadillo (2022) 14
Cal.5th 216, 232.) I would exercise that discretion to conduct an independent review of
the record.
RAMIREZ P. J.
1
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant lacks standing to initiate a motion for recall and resentencing under Penal Code section 1172.1, and therefore an order denying such a motion is not appealable.
Issues
Whether a defendant has standing to file a motion for recall and resentencing under Penal Code section 1172.1.
Whether an order denying a defendant's unauthorized motion for resentencing under section 1172.1 is appealable.
Disposition. Dismissed
Quotations verified verbatim against the opinion
“The statute does not authorize the defendant themselves to recommend or seek resentencing.”
“Section 1170 subdivision (d) does not confer standing on a defendant to initiate a motion to recall a sentence.”
“we lack the authority to render a decision on the merits of appeals from a defendant’s attempt to seek resentencing under section 1172.1.”