California Court of Appeal Mar 12, 2024 No. E082189Unpublished
Filed 3/12/24 P. v. Oswald CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082189
v. (Super.Ct.No. FWV1402748)
LARRY GENE OSWALD, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Joseph B. Widman,
Judge. Dismissed.
Larry Gene Oswald, Jr., in pro. per.; William D. Farber, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Larry Gene Oswald appeals from the trial court’s order
denying his petition for resentencing pursuant to Senate Bill No. 81 and Assembly Bill
1
No. 333. For the reasons set forth post, we hereby dismiss this case for lack of
jurisdiction.
STATEMENT OF THE CASE
On September 9, 2016, an information charged defendant with first degree murder
with malice aforethought (Pen. Code1 § 187, subd. (a); count 1); sale or transportation of
marijuana (Health & Saf. Code, § 11360, subd. (a); count 2); and possession of marijuana
for sale (Health & Saf. Code, § 11359; count 3).2 As to count 1, the information also
alleged that defendant personally used a firearm (Pen. Code, § 12022.53, subd. (b));
personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)); and
personally and intentionally discharged a firearm causing great bodily injury and death
(Pen. Code, § 12022.53, subd. (d)). In addition, the information alleged that defendant
suffered from one prior serious or violent felony conviction (Pen. Code, §§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)).
On June 1, 2022, pursuant to a negotiated plea agreement, the information was
amended to add voluntary manslaughter (§ 192, subd. (a); count 6). Moreover, as to
count 6, the amended information added allegations that defendant had a prior felony
conviction (§§ 667, subd. (a)(1), 1170.12, subds. (a)-(d)), and that defendant personally
used a firearm (§ 12022.5, subd. (a)). Additionally, the amended information alleged a
criminal street gang terrorism enhancement (§ 186.22, subd. (b)(1)). Thereafter,
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The information also named Karen Lyn Collins and Donald Collins as defendants. They are not parties to this appeal.
2
defendant pled no contest to count 6, and admitted the prior serious felony allegation,
personal use of a firearm allegation, and criminal street gang terrorism enhancement.
On June 29, 2022, pursuant to the terms of the negotiated plea agreement, the
court denied probation and sentenced defendant an indeterminate term of 40 years in state
prison as follows: upper term of 22 years on count 6 (11 years doubled under § 667,
subd. (e)(1)); consecutive upper term of 10 years under section 12022.5, subdivision (a);
a consecutive term of five years under section 667, subdivision (a)(1); and to a
consecutive term of three years under section 186.22, subdivision (b). Moreover, the trial
court dismissed or struck all the remaining counts, special allegations, and enhancements.
On April 14, 2023, defendant filed a petition for resentencing. In the petition,
defendant asked the trial court (1) to dismiss portions of his sentence pursuant to Senate
Bill No. 81; and (2) to vacate the three-year sentence under section 186.22, subdivision
(b)(1) (gang enhancement) under Assembly Bill No. 333.4.
After the trial court appointed counsel to represent defendant, the People filed
opposition. The People argued that the trial court sentenced defendant in accordance
with the negotiated plea agreement, and after the effective date of January 1, 2022, for
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both Senate Bill No. 813 and Assembly Bill No. 3334. The People also argued that the
trial court lacked jurisdiction to modify defendant’s sentence because the judgment of
conviction in his case was final when he filed his petition for resentencing.
At the hearing on defendant’s petition on July 28, 2023, the court denied
defendant’s petition and request for relief under Senate Bill No. 81 and Assembly Bill
No. 333. The court stated: “The Court is respectfully denying the petitioner’s motion or
request due to lack of jurisdiction because the judgment already became final.”
On September 21, 2023, defendant filed a timely notice of appeal.
DISCUSSION
Counsel has filed a brief under the authorities of People v. Wende (1979) 25
Cal.3d 436, Anders v. California (1967) 386 U.S. 739, and People v. Delgadillo (2022)
14 Cal.5th 216 (Delgadillo). In the brief, pursuant to Anders, supra, appellate counsel
has identified the following issue to assist the court in its search of the record for error:
3 Effective January 1, 2022, Senate Bill No. 81 amended section 1385 to add mitigating factors the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice. (Stats. 2021, ch. 721, § 1.) Section 1385, subdivision (c), states as follows: “(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. [¶] (2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances . . . are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.”
4 Effective January 1, 2022, Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3) changed the substantive requirements for proving a section 186.22 gang enhancement by narrowing the definition of a criminal street gang and modifying other elements of the gang statutes.
4
“Did the trial court err in denying appellant’s petition for sentencing relief
pursuant to Senate Bill No. 81 and Assembly Bill No. 333 [with January 1, 2022 effective
dates] on the ground that the judgment of conviction was final as of the April 14, 2023
date appellant’s petition was filed, thus depriving the court of jurisdiction to recall the
sentence.”
On January 25, 2024, we sent notice to defendant regarding the filing of a
Delgadillo brief, as follows: “Counsel for appellant has filed a brief stating no arguable
issues can be found. Because this is an appeal from the denial of a post-conviction
proceeding, this court is not required to conduct an independent review of the record but
may do so in its discretion. (People v. Delgadillo (2022) 14 Ca1.5th 216 []; People v.
Serrano (2012) 211 Ca1.App.4th 496.) The appellant is personally granted 30 days to
file any supplemental brief deemed necessary. If appellant files a supplemental brief, this
court will evaluate the specific arguments presented in that brief in its opinion.
(Delgadillo, supra, 14 Ca1.5th 216[.]) Failure to timely file a supplemental brief may
result in the dismissal of the appeal as abandoned.”
On February 22, 2024, defendant filed a five-page supplemental brief with
exhibits. Although the filing of a supplement brief does not compel an independent
review of the entire record to identify unraised issues, we have the discretion to do so.
(Delgadillo, supra, 15 Cal.5th at p. 232.)
In this case, at the hearing on defendant’s petition, the trial court stated:
“This case is on the Court’s calendar on the defense motion filed by the defendant
pro per on August 14th, 2023 for relief pursuant to Senate Bill number 81 and Assembly
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Bill number 333. I have reviewed that brief as well as the People’s opposition to relief
filed on May 25th. The previous procedural history of the case is that the Court
appointed counsel to represent the defendant. The Court held a hearing in which the
Court was informed that the defendant’s preference was not to be transported from state
prison for a hearing on the case, but that the defendant wished to be present via video. So
the Court has made accommodations, and that’s why the defendant is here. Good
afternoon, sir.”
“I’d also like to document for the record an exchange that I had with the attorneys
for both sides present in open court this little while ago before we called the case. I told
the attorneys that on the first point from the prosecution’s brief, which concerns the
timing and the alleged late timing of the petition after the judgment had become final, I
said that I was inclined to agree with the prosecution based upon the authorities cited
there, but that I was open to any additional briefing that the defense wished to present on
that point. The second point of—that the prosecution made in their brief, I told the
parties that—I tended to agree that even if the defendant were entitled to relief, the proper
remedy in all fairness would be to put the parties back in the same position they were
before they entered into the plea agreement. So, essentially, to allow the plea to be
withdrawn and allow the parties to either negotiate a different resolution or to go to trial.
[¶] . . . [¶] The attorneys—and it was primarily [defense counsel] speaking—although,
the prosecutor . . . was present as I stated, indicated that he did not have any legal
authorities to present on the first point. And in his view, if the Court were to rule in favor
of the prosecution on that first point, namely whether or not—namely that the judgment
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was final such that relief could not be granted, then he was inclined to essentially submit
on—but urged the Court to grant the defendant’s request nonetheless. So after that, I
asked the defense attorney . . . whether he wished to consult with his client before the
Court called the case, and [defense counsel] indicated he did not think it was necessary
because the issue—kind of went without saying, but the issue was if he doesn’t have legal
authorities to dispute the argument in section one and the Court’s inclined to go along
with that in light of those authorities, then there really isn’t much to talk about. But
[defense counsel] did wish and reserved the opportunity, if possible, to speak with
[defendant] after the hearing is over so that he can explain to him essentially what
happened from a legal perspective. Does either side wish to supplement or revise the
summary I just made of our off-the-record discussion?”
Both defense counsel and the prosecutor agreed that the court’s summary of the
off-the-record discussion was accurate.
Thereafter, the court stated: “So at this time in light of that summary and the
substantive issues that were addressed, my tentative is to respectfully deny the request or
the motion that was filed on April 14th on the grounds that the Court lacks jurisdiction to
grant the relief sought given that the judgment in the case has already become final.
Does either side wish to be heard on my tentative?” Both the prosecutor and defense
counsel submitted.
The court then ruled: “The Court is respectfully denying the petitioner’s motion
or request due to lack of jurisdiction because the judgment already became final.”
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We agree with the trial court that it lacked jurisdiction to grant defendant’s
motion. “A trial court order denying relief that the court has no jurisdiction to grant does
not affect a defendant’s substantial rights and is therefore not appealable under section
1237, subdivision (b).” (People v. King (2022) 77 Cal.App.5th 629, 739.) Under section
1237, subdivision (b), a court’s postjudgment order is appealable “if that order affects a
defendant’s substantial rights. An order denying a motion the court lacks jurisdiction to
grant does not affect a defendant’s substantial rights. [Citation.] Any appeal from such
an order must be dismissed.” (People v. Alexander (2020) 45 Cal.App.5th 341, 344.)
Accordingly, because the trial court’s denial of defendant’s motion is not an appealable
order, the appeal must be dismissed.
DISPOSITION
Defendant’s appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
RAPHAEL J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal because the trial court's order denying a petition for resentencing for lack of jurisdiction is not an appealable order affecting a defendant's substantial rights.
Issues
Did the trial court err in denying the petition for resentencing on the ground that the judgment was final and the court lacked jurisdiction?
Is an order denying a motion that the court lacks jurisdiction to grant an appealable order under Penal Code section 1237, subdivision (b)?
Disposition. dismissed
Quotations verified verbatim against the opinion
“The Court is respectfully denying the petitioner’s motion or request due to lack of jurisdiction because the judgment already became final.”
“An order denying a motion the court lacks jurisdiction to grant does not affect a defendant’s substantial rights. [Citation.] Any appeal from such an order must be dismissed.”