Because Senate Bill No. 620 (granting courts discretion to dismiss firearm use enhancements) is not retroactive to cases whose judgments were final on its effective date, defendant’s appeal must be dismissed. In 2009, Johnson was convicted of second degree murder and a firearm enhancement (Pen. Code, § 12022.53, subd. (b)) was found true. The judgment was final in 2011. In 2018, Johnson filed a motion to be resentenced within the provisions of SB 620, which amended Penal Code sections 12022.5 and 12022.53 to grant the trial court discretion to dismiss or stay the firearm enhancements. The trial court summarily denied the motion. He appealed. Held: Appeal dismissed. An order made after judgment affecting a defendant’s substantial rights is appealable. Because the trial court lacked jurisdiction to modify defendant’s sentence, denial of his motion to modify his sentence did not affect his substantial rights. The amendments made by SB 620 apply to judgments that were not final its effective date, January 1, 2018. Johnson’s judgment was final in 2011, before the effective date of SB 620. Penal Code section 12022.53, subdivision (h), provides that the discretion to strike or dismiss the firearm enhancement applies “to any resentencing that may occur pursuant to any other law.” Although Johnson had filed many petitions for writs of habeas corpus in state and federal courts on various grounds over the years, they did not extend the date on which his judgment became final, because he was never granted relief. Because he did not obtain collateral relief, appellant was not eligible for “resentencing . . . pursuant to any other law.” The trial court correctly entered an order summarily denying the sentencing request.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B290213.PDF