People v. Sewell CA3

Filed 6/17/24 P. v. Sewell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099947

Plaintiff and Respondent, (Super. Ct. No. 22FE018384)

v.

RORY DUANE SEWELL,

Defendant and Appellant.

Defendant Rory Duane Sewell appeals the trial court’s denial of his petition for resentencing, purportedly under Penal Code sections 1170, 1171, 1172, and Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719).1 His appellate counsel filed a brief raising no arguable issues under People v. Wende (1979) 25 Cal.3d 436 (Wende) and asked this court to review the record and determine whether there are any arguable issues on appeal. We will affirm.

1 Undesignated statutory references are to the Penal Code.

1

I. BACKGROUND In November 2022, defendant possessed a 9-millimeter high capacity magazine and multiple rounds of ammunition. He was prohibited from possessing the items because he was convicted in 2021 of felony making criminal threats (§ 422). In March 2023, defendant pled no contest to unlawfully possessing ammunition. (§ 30305, subd. (a)(1).) He also admitted a prior strike. (§§ 667, subds. (b)-(j), 1170.12.) The parties stipulated to a 32-month prison sentence (the low term of 16 months doubled due to the strike), and the trial court sentenced him accordingly. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a corresponding $300 parole revocation fine (suspended unless parole is revoked) (§ 1202.45). There is nothing in the record indicating defendant appealed from the March 2023 judgment. In June 2023, defendant filed a pro per petition for resentencing, citing sections 1170, 1171, 1172, and requesting relief under Assembly Bill Nos. 124, 256, 333, 1540 (2021-2022 Reg. Sess.), and Senate Bill Nos. 73, 81, 483, 567, 775 (2021-2022 Reg. Sess.). In October 2023, the trial court denied defendant’s petition because section 1172.1 does not confer standing on a defendant to initiate a motion to recall a sentence. Similarly, section 1172.75 does not permit a defendant to directly file a motion for resentencing. Regardless, reasoned the court, even if it had jurisdiction to consider resentencing, it did not appear that any of the enhancements that were made invalid by Senate Bill No. 483 were applied in defendant’s case. Defendant timely appealed from the October 2023 order. II. DISCUSSION Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief.