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Criminal Defense Attorneys

Defendant in Prison Files Motion for Resentencing, Denied

Our office has received plenty of phone calls over the last two years about resentencing a person in prison under one or more the new laws allowing a judge discretion to strike certain enhancements, whether for a five year prior serious felony conviction (SB 1393), use of a firearm in committing a crime (SB 620), a gang allegation (AB 333), a prior prison term (SB 136), and even for a prior conviction for murder, attempted murder or manslaughter under the natural and probable consequences doctrine or the felony murder rule (SB 1437 / SB 775).

We must advise each caller that most of the laws (except SB 1437 / SB 775 and AB 865) are not retroactive to sentences that are final and then we explain what a final sentence is.  We then explain that the CDCR or the District Attorney’s office can ask a judge to recall and resentence a person.

Making matters more confusing are additional new laws, such as SB 81, SB 567, SB 518 and SB 483 that address the procedures and obligations of a judge in resentencing, but do not address the threshold issue that most of these laws are not retroactive.

It was inevitable, if not certain, that this “minor detail” would be overlooked by an ambitious prisoner who would file his own freestanding motion for resentencing.

Jeffrey Alan Burgess was one such state prisoner who did so and made a name for himself by appealing the trial court’s denial of his resentencing request.

In January 2010, in Humboldt County Superior Court, Mr. Burgess entered into a plea bargain wherein he was sentenced to 30 years in state prison with nine years for an underlying first degree residential burglary (Penal Code §§ 211, 213), a consecutive 20 years for a firearm use (discharging it during the burglary) enhancement (Penal Code § 12022.53(c)) and a one-year prison prior enhancement (Penal Code § 667.5(b)).

In February 2022, Burgess filed a motion in propia persona to vacate his one-year prison prior enhancement under Penal Code § 667.5(b) only.

The judge assigned to review the motion denied the motion, explaining that newly added Penal Code § 1171.1 does not allow Mr. Burgess to seek such relief on his own motion.  See Penal Code § 1171.1(b).

Mr. Burgess then appealed this order to the First Appellate District Court, but it was not ruled upon immediately.

While waiting for the First Appellate District to rule on his appeal, Mr. Burgess filed a similar motion for resentencing under SB 81.  The trial court also denied this motion, explaining that the new law does not permit a defendant to seek dismissal or the striking of an amendment on his own motion. 

Burgess then appealed this order as well to the First Appellate District Court.

Burgess was then appointed counsel and appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal. 3d 436 (a “Wende Brief”), requesting that the court independently review the record to determine whether there are any arguable issues on appeal because appointed counsel found none.  Mr. Burgess was also advised of his right to file a supplemental brief, but Burgess did not do so.

The First Appellate District then consolidate both of Burgess’ appeals.  It affirmed the trial court’s ruling on both of Burgess’ motion, explaining that the trial court lacked jurisdiction to vacate or modify a sentence once a judgement is rendered and execution of the sentence has begun, so it must deny any freestanding motion seeking such relief. 

Moreover, since the trial court lacks jurisdiction, its order is non appealable, so any appeal based on such an order mut be dismissed. 

Here, Burgess filed his motion years after his conviction became final.  The Humboldt County Superior Court judge assigned to rule on the appeal simply lacked jurisdiction to grant the relief sought and it denied the motion.

We present this summary because it exemplifies what happens if defendant, sua sponte or through defense counsel, files such a motion to strike or apply any one of the new resentencing laws (with certain exceptions) once the judgment becomes final, particularly years after defendant was convicted, as here.

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