Modification: People v. Escobedo

THE PEOPLE,

Plaintiff and Respondent,

v.

JACOB ESCOBEDO,

Defendant and Appellant.

2d Crim. No. B322608

(Super. Ct. No. 2016022491)

(Ventura County)

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTHUR CHAVIRA,

Defendant and Appellant.

2d Crim. No. B323765

(Super. Ct. No. 2014022397)

(Ventura County)

California Court of Appeal

Second Appellate District

Division Six

Filed October 2, 2023

THE COURT:

It is ordered that the opinion filed herein on September 12, 2023, be modified as follows:

1. On page 12, after the first partial paragraph ending with "orders denying their petitions," insert the following new paragraph:

Burgess, supra, 86 Cal.App.5th 375, is relevant to the Government Code section 68081 issue. Both parties cite the case. In Burgess the Court of Appeal held that the trial court lacked jurisdiction to adjudicate an inmate's motion for resentencing under section 1172.5 because (1) it was a "'freestanding motion'" not "attached to some ongoing action," and (2) it was not filed "pursuant to 'specific statutory avenues for incarcerated defendants to seek resentencing in particular cases.'" (Burgess, supra, at p. 381.) In respondent's brief the People do not mention the "freestanding petitions" issue, but they cite Burgess in support of their claim that "the superior court lacked jurisdiction to rule on appellant[s'] petition, and this Court should dismiss appellant[s'] appeal for lack of jurisdiction." In their reply briefs appellants attempt to distinguish Burgess as follows: "The Burgess case dismissed the appeal because to permit remand would undermine the staged timeline for resentencing contemplated by the Legislature and delegated to CDCR for screening. . . . [¶] Since this case involves an appellant who CDCR identified as being eligible for resentencing in the first wave of resentencing applications, the Burgess decision does not apply." In their attempt to distinguish Burgess, appellants opened the door to the question whether Burgess is indistinguishable because, like the inmate in Burgess, appellants filed "'freestanding'" petitions not "attached to some ongoing action" and the petitions were not statutorily authorized. (Ibid.)  Thus, the "freestanding petitions" issue is "fairly included within the issues actually raised" by the parties, e.g., the issue of the applicability of Burgess. (People v. Alice, supra, 41 Cal.4th at p. 677.)

There is no change in judgment.

Appellants' petition for rehearing is denied.

GILBERT, P. J. YEGAN, J. BALTODANO, J.