People v. Smith CA2/1

Opinion

Filed 9/28/26 P. v. Smith CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B347331

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA052542) v.

DEANTE SMITH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Emily J. Cole, Judge. Dismissed. Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Deante Smith attempts to appeal from the trial court’s order denying his Penal Code section 1172.1 request for recall and resentencing.1 We conclude the order is not appealable, and we decline Smith’s request that we treat his challenge thereto as a petition for writ of habeas corpus. Accordingly, we dismiss the appeal.

FACTUAL BACKGROUND In 2013, a jury found Smith guilty of two counts of assault with a firearm (§ 245, subd. (a)(2)) and two counts of battery causing serious bodily injury (§ 243, subd. (d)). The jury also found true multiple special enhancements. Smith waived jury trial on prior conviction allegations, and the court found true that Smith had two prior convictions for serious or violent felonies within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i) & 1170.12, subds. (a)–(d)), two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and that he had served two prior prison terms within the meaning of section 667.5, subdivision (b). The court initially sentenced Smith to over 81 years in prison. Following two resentencing hearings and two appeals from the resulting resentencing orders, Smith’s aggregate sentence is 36 years 4 months in prison. (People v. Smith (June 25, 2020, B299355) [nonpub. opn.].) In April 2025, Smith filed a “request for recall of sentence and resentencing pursuant to Assembly Bill [No.] 600 and . . . section 1172.1.” (Boldface & capitalization omitted.) Section 1172.1 provides an exception to the general rule that a trial court loses jurisdiction once execution of sentence has begun. As originally enacted, it authorizes a recall and resentencing procedure that 1 All further statutory references are to the Penal Code.

2 a court may invoke “ ‘ “at any time” upon the recommendation of various designated correctional or law enforcement authorities’ ” or “ ‘ “on its own motion” within 120 days of the date of commitment.’ ” (People v. Brinson (2025) 112 Cal.App.5th 1040, 1046 (Brinson), quoting § 1172.1, subd. (a)(1).) Effective January 1, 2024, Assembly Bill No. 600 amended section 1172.1 to expand a trial court’s authority to recall and resentence a defendant at any time “on its own motion” if “applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.” (See § 1172.1, subd. (a)(1); as amended by Stats. 2023, ch. 446, § 2.) Notably for our purposes, section 1172.1, subdivision (c) provides without caveat: “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); People v. Hodge (2024) 107 Cal.App.5th 985, 993 (Hodge) [section 1172.1 “expressly denies defendants the right to file a petition for resentencing under that section, and expressly excuses the trial court from acting on any such request that a defendant might nevertheless file”].) Neither the trial court nor any of the authorities identified in section 1172.1 sought resentencing for Smith. Rather, Smith himself filed a request contending he was eligible for relief under that section because “the following law(s) applied at the time of [his] sentencing ha[ve] changed: [¶] . . . § 1385 (amended . . . by [Sen. Bill No.] 81); [¶] . . . § 667[, subdivision] (a)(1) (amended in 2019 by [Sen. Bill No.] 1393) [and] [¶] . . . §§ 1170 & 1170.1 (amended in 2022 by [Sen. Bill No.] 567).”

3 Despite being under no obligation to respond, the court chose to issue a written order denying Smith’s request. The order also rejects Smith’s contention that the law dictating Smith’s current sentence has changed. The order states: “The court received a request to recall sentence in the above-entitled case on [April 14, 2025]. In it, the defendant asks that he be resentenced pursuant to [sections] 1170 and 1170.1. [¶] This new . . . section only applie[d] to conviction[s] that have not yet been made final by sentencing. The defendant was sentenced in 2017 to the current valid law. Nothing in the defendant’s case or conviction, based on all current law, would allow a resentence. Consequently, petitioner’s request is denied.” (Boldface & capitalization omitted.) Smith filed a notice of appeal from that order.

DISCUSSION Smith’s appointed appellate counsel filed a brief identifying no issues on appeal and requesting that we follow the procedures outlined in People v. Delgadillo (2022) 14 Cal.5th 216. Under those procedures, we are not required to conduct an independent review of the record to identify appealable issues, although we have discretion to do so. (Id. at p. 232.) Cognizant of our discretion, we decline to conduct an independent review. We are, however, “required to evaluate the specific arguments presented in [any supplemental] brief” an appellant chooses to file. (Ibid.) We do so below.

A. Appealability of the Challenged Order In his supplemental brief, Smith contends the order denying his request for resentencing under section 1172.1 is appealable. We disagree.

4 When, as here, a statute does not expressly provide for the right of appeal, appealability depends on whether the court’s order denying relief affects a defendant’s substantial rights. (See § 1237, subd. (b); accord, People v. Loper (2015) 60 Cal.4th 1155, 1159–1160.) We conclude the challenged order here does not. Section 1172.1 establishes that a court has no duty to respond to—let alone grant—a defendant’s request for section 1172.1 relief. It follows that a defendant has no right to the initiation of section 1172.1 recall and resentencing proceedings in response to such a request. An order denying this relief thus does not affect the defendant’s substantial rights. (See Brinson, supra, 112 Cal.App.5th at p. 1046 [“[c]ourts have interpreted the second sentence of section 1172.1, subdivision (c) to mean that defendants do not have a substantial right at stake when they request recall and resentencing”].) Accordingly, such an order is not appealable. (See, e.g., People v. Roy (2025) 110 Cal.App.5th 991, 994 (Roy), review denied July 16, 2025, S291146 [“a trial court order denying or dismissing a defendant-initiated request under section 1172.1 is not appealable because the trial court had no statutory obligation to act on defendant’s request and thus the order did not affect a defendant’s substantial rights under section 1237, subdivision (b)”]; People v. Faustinos (2025) 109 Cal.App.5th 687, 697 (Faustinos), review denied June 11, 2025, S289909 [same]; Brinson, supra, at pp. 1045–1046 [same].) Subdivision (d) of section 1172.1 further supports this conclusion. That subsection requires a trial court to advise a defendant of his or her right to appeal only “[a]fter ruling on a referral authorized by this section.” (§ 1172.1, subd. (d).) “The absence of any obligation by the trial court to advise the defendant of a right to appeal the denial of the defendant’s unauthorized 5 request for resentencing strongly suggests that the Legislature did not intend to create such a right.” (Hodge, supra, 107 Cal.App.5th at p. 999.) On these bases, several Courts of Appeal have held that “order[s] summarily denying the defendant’s [unauthorized section 1172.1] request and briefly explaining the reason(s)” were not appealable. (People v. Craig (2026) 117 Cal.App.5th 1165, 1175; ibid. [describing and distinguishing such cases]; see, e.g., Faustinos, supra, 109 Cal.App.5th at pp. 693, 697–698; Hodge, supra, 107 Cal.App.5th at p. 995.) We agree with the reasoning of these decisions. Smith argues this reasoning does not apply. He contends that, unlike cases like Hodge and Brinson, the court denied Smith’s request based on the merits of that request—not because the request was unauthorized or because the court was not required to act. “By this argument, he seems to be saying that despite possessing no right to move [for the relief he sought] or to have the court exercise its discretion in a particular way, he retains a substantial right to second guess the court’s articulated reasons for not doing what he had no right to have the court do.” (People v. Gallardo (2000) 77 Cal.App.4th 971, 984 (Gallardo); id. at pp. 975, 984, [rejecting this argument and deeming nonappealable order denying defendant’s unauthorized motion to dismiss convictions, despite the order discussing the merits of the motion].) But “appealability depends upon the nature of the decision made, not the court’s justification for its ruling.” (Id. at p. 985.) We thus disagree with Smith that two sentences in the court’s order addressing the merits of his unauthorized request are alone sufficient to change the nature of the order and create a substantial right. (See Faustinos, supra, 109 Cal.App.5th at p. 697 [“[w]e do not 6 think that a court’s phrasing of an order can convert a nonappealable order into an appealable one”].) Moreover, the court’s order could be interpreted, not as denying Smith’s request based on its merits, but as “noting . . . that [the court] lacks jurisdiction to act on its own section 1172.1 motion,” because “[i]f no applicable laws have changed, the court may not act on its own.” (Faustinos, supra, 109 Cal.App.5th at p. 697, italics added; see ibid. [“Beyond 120 days from the defendant’s commitment, a trial court may act only if ‘the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.’ (§ 1172.1, subd. (a)(1).)”].) Finally, even if, as Smith contends, the court erred in concluding that the law under which he was sentenced has not changed, that too would not render the order appealable. Such a change in applicable sentencing law merely grants the court jurisdiction to resentence on its own motion—it does not grant Smith a substantial right to resentencing. (See Faustinos, supra, 109 Cal.App.5th at p. 697; id. at pp. 698–699 [“even assuming the trial court erroneously stated, in response to Faustinos’s unauthorized petition, that it lacks authority to act on its own motion, we do not think that would convert a nonappealable order to an appealable one” and “the remedy [under such circumstances] is to petition for a writ of habeas corpus in the trial court”].) The order is not appealable.

B. Writ Relief Smith’s supplemental brief requests in the alternative that, should we determine the challenged order is not appealable, we “consider the matter [as a petition for writ of] habeas corpus.” (Italics omitted.)

7 “Appellate courts have exercised their discretion to treat procedurally defective appeals as petitions for a writ of habeas corpus in a variety of circumstances,” such as when doing so is “in the ‘interest of judicial economy’ and where the ‘issue is of general concern,’ ” or “where the law is uncertain as to whether the order is appealable.” (People v. Singleton (2025) 113 Cal.App.5th 783, 799.) Reviewing an order denying a request that Smith had no legal right to make, and the trial court had no obligation to address, would serve neither these, nor any other purpose. Smith urges us to do so because he is using his unauthorized request in part to challenge the lack of a full resentencing hearing following remand from a 2020 appeal in which we struck two section 667 enhancements from his original sentence, rather than instructing the court to strike these enhancements and conduct a full resentencing hearing following remand. He contends he has no other means of seeking such review. We disagree. In the prior appeal Smith references, we chose not to order further proceedings, because “Smith [did] not request remand for resentencing, and we agree[d] that remand [was] not warranted[, because] [t]he trial court imposed the high term and consecutive sentences where it could do so and refused to strike the firearm or prior serious felony enhancements.” (People v. Smith, supra, B299355.) For this and other reasons, the lack of a resentencing hearing several years ago does not weigh in favor of treating Smith’s current attempted appeal as a writ petition.

8 DISPOSITION The appeal is dismissed. NOT TO BE PUBLISHED.

ROTHSCHILD, P. J. We concur:

BENDIX, J.

WEINGART, J.