I. FACTUAL AND PROCEDURAL BACKGROUND3

On January 31, 2019, a jury found defendant guilty of attempted murder (§§ 664,

187, subd. (a), count 1) and assault with a firearm (§ 245, subd. (a)(2), count 2). The jury

also found true allegations that defendant inflicted great bodily injury (§ 12022.7,

subd. (a)) and personally used a firearm, intentionally discharged it, and proximately

caused great bodily harm in his commission of the attempted murder (§ 12022.53,

subds. (b), (c) & (d)). The court sentenced defendant to a total of 22 years in state prison

including the aggravated term of nine years on the attempted murder offense. (Lu, supra,

E031035.)

2 “If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.)

3 We take judicial notice of this court’s unpublished opinion in People v. Lu (Aug. 11, 2020, E072432) (Lu), from defendant’s appeal of the judgment. (Evid. Code, § 459.)

2 Defendant appealed. By opinion filed August 11, 2020, this court affirmed the

judgment. (Lu, supra, E031035.)

On March 6, 2024, defendant submitted a form petition for resentencing pursuant

to section 1172.6. On March 19, 2024, defendant submitted a form petition for

resentencing pursuant to sections 1170 and 1170.1.4 On March 26, 2024, the superior

court indicated by minute order that it had “read and considered correspondence from

defendant regarding request for Recall of Sentence and Resentencing Pursuant to

[section] 1172.1 dated 3/18/2024.” The court summarily denied the request pursuant to

section 1172.1, subdivision (c).

II. DISCUSSION

On appeal, defendant contends that section 1172.1 enables a court to resentence a

defendant even after the judgment is final. He maintains the trial court sentenced him to

the upper term based on aggravating factors not found true by the jury. Therefore,

defendant argues the court abused its discretion in declining to reduce his sentence from

the upper to the midterm. We affirm.

“When a defendant, upon conviction for a felony offense, has been committed to

the custody of the Secretary of the Department of Corrections and Rehabilitation [CDCR]

4 The court did not officially file either petition; the indices in the clerk’s transcript reflect that they were “NOT FILED.” The indices also indicate that the latter petition was for resentencing pursuant to Assembly Bill No. 600 and section 1172.1, although neither are mentioned in the actual petition. Effective January 1, 2022, the recall and resentencing provisions of former section 1170, subdivision (d)(1), were moved to new section 1170.03 (Stats. 2021, ch. 719, §§ 1- 7), which was then renumbered as section 1172.1 effective June 30, 2022 (Stats. 2022, ch. 58, § 9).

3 . . . the court may, on its own motion, within 120 days of the date of commitment or at

any time if the applicable sentencing laws at the time of original sentencing are

subsequently changed by new statutory authority or case law, at any time upon the

recommendation of the [CDCR] or the Board of Parole Hearings in the case of a

defendant incarcerated in state prison . . . the district attorney of the county in which the

defendant was sentenced . . . recall the sentence and commitment previously ordered and

resentence the defendant in the same manner as if they had not previously been

sentenced. . . . Recall and resentencing under this section may be initiated by the original

sentencing judge, a judge designated by the presiding judge, or any judge with

jurisdiction in the case.” (§ 1172.1, subd. (a)(1)) “A defendant is not entitled to file a

petition seeking relief from the court under this section. If a defendant requests

consideration for relief under this section, the court is not required to respond.”

(§ 1172.1, subd. (c).)

“In the context of California’s determinate sentencing scheme, Cunningham v.

California (2007) 549 U.S. 270 (Cunningham) held that, ‘under the Sixth Amendment,

any fact that exposes a defendant to a greater potential sentence must be found by a jury,

not a judge, and established beyond a reasonable doubt. . . .’ [Citation.]” (People v.

Lynch (2024) 16 Cal.5th 730, 742) “Effective January 1, 2022, . . . section 1170,

subdivision (b) . . . was amended to prohibit imposition of an upper term sentence unless

aggravating circumstances justify that term and the facts underlying any such

circumstance, other than a prior conviction, ‘have been stipulated to by the defendant or

4 have been found true beyond a reasonable doubt at trial by the jury or by the judge in a

court trial.’ [Citation.]” (Ibid.) “[T]his amendment applies retroactively to defendants

. . . whose judgments were not final on direct appeal at the time the statute took effect.”

(Ibid.) “The 2022 amendment of section 1170(b)(1) and (2) effectively codifies the

holding in Cunningham . . . .” (Id. at p. 757.)

First, as defendant concedes, section 1172.1, subdivision (c), gives the court

discretion to decline to respond to a petition submitted pursuant to its auspices if a

defendant files the petition himself. Here, defendant filed the petition himself. Thus, the

court’s denial with an express citation to section 1172.1, subdivision (c), conveys that the

court denied the petition on the basis that it was not required to respond to defendant’s

petition. Therefore, on that basis, the court properly denied the petition.

Second, defendant fails to show that he did not stipulate to or that a jury did not

find true any aggravating factors that would have been sufficient for the court to impose

the upper term. (People v. Moore (2021) 68 Cal.App.5th 856, 866 [“Of course, ‘the

defendant . . . bears the burden to provide a record on appeal which affirmatively shows

that there was error below, and any uncertainty in the record must be resolved against the

defendant.’ [Citation.]”].) Although the court sentenced defendant prior to the effective

date of section 1170, subdivision (b), the court imposed defendant’s sentence long after

the court decided Cunningham in 2007. Therefore, defendant has failed to demonstrate

that the sentencing court improperly imposed the aggravated sentence.

5 Third, appellate counsel did not raise any issue with respect to the court’s

imposition of the upper term in defendant’s appeal from the judgment. (Lu, supra,

E072432.) Ameliorative petitions do not afford the petitioner a new opportunity to raise

claims of trial error. (See People v. Farfan (2021) 71 Cal.App.5th 942, 947; accord

People v. Burns (2023) 95 Cal.App.5th 862, 865 [“Section 1172.6 does not create a right

to a second appeal, and [defendant] cannot use it to resurrect a claim that should have

been raised in his [earlier] direct appeal”]; People v. Senior (1995) 33 Cal.App.4th 531,

535, 538 [“[W]here a criminal defendant could have raised an issue in a prior appeal, the

appellate court need not entertain the issue”]; see In re Harris (1993) 5 Cal.4th 813, 829

[“Proper appellate procedure thus demands that, absent strong justification, issues that

could be raised on appeal must initially be so presented”].)

Fourth and finally, section 1170, subdivision (b), applies retroactively only to

those “defendants . . . whose judgments were not final on direct appeal at the time the

statute took effect.” (People v. Lynch, supra, 16 Cal.5th at p. 742.) Defendant’s

judgment has been final since 2020, long before the effective date of section 1170 on

January 1, 2022. “Where, as here, execution of sentence has commenced and the

judgment is final, the trial court is generally ‘deprived of jurisdiction to resentence’ a

criminal defendant. [Citations.]” (People v. Hernandez (2024) 103 Cal.App.5th 1111,

1118.) Thus, defendant is not entitled to have his sentence reduced pursuant to section

1170. The court properly denied the petition.

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III. DISPOSITION

The court’s order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J.

We concur:

MILLER

J.

FIELDS

J.

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