Filed 9/28/26 P. v. Smith CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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 As originally
enacted, it authorizes a recall and resentencing procedure that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.
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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).”
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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.
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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
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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
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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.)
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“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.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
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