Filed 7/7/26 P. v. Smith CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B344601
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA139840)
v.
ROBERT LATRELL SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert G. Chu, Judge. Dismissed.
David R. Greifinger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Robert Latrell Smith (defendant)
appeals from a postconviction order denying his request for
resentencing pursuant to Penal Code1 section 1172.1. For the
first time in his notice of appeal, defendant contends he is also
seeking resentencing pursuant to section 1172.75. We conclude
the order at issue is not an appealable order and dismiss the
appeal.
In 2016, defendant was charged by information with one
count of attempted willful, deliberate, and premeditated murder
(§§ 187, 664; count 1); shooting at an occupied motor vehicle
(§ 246; counts 2 & 3); and being a felon in possession of a firearm
(§ 29800, subd. (a)(1); count 4). As to count 1, it was alleged that
a principal personally and intentionally discharged and
personally used a firearm within the meaning of section
12022.53, subdivisions (b), (c), and (e)(1). As to counts 1, 2, and 3,
it was further alleged the offenses were committed for the benefit
of a criminal street gang within the meaning of section 186.22,
subdivision (b)(1)(C) and (4). As to all counts, it was alleged
defendant suffered a prior strike within the meaning of the
“Three Strikes” law (§§ 667, subd. (d), 1170.12, subd. (b)) and a
prior serious felony conviction as provided for in section 667,
subdivision (a)(1).
In 2017, defendant pleaded no contest to count 1. As a
result of the plea, the court struck the premeditation allegation,
and defendant admitted the gang allegation. Defendant also
admitted to having served a prior prison term within the
meaning of section 667.5, subdivision (b), which was added to the
1 All further undesignated statutory references are to the
Penal Code.
2
information by interlineation. Defendant was sentenced to an
aggregate term of 16 years comprised of the low term2 of five
years in count 1, plus 10 years for the gang enhancement, plus
one year for the prior prison term enhancement pursuant to
section 667.5, subdivision (b).
In July 2024, defendant filed a request for recall of
sentence pursuant to Assembly Bill No. 600 (2023-2024 Reg.
Sess.) (Assembly Bill No. 600) and section 1172.1 Defendant
stated his belief he was eligible for resentencing based on
changes to the law since his initial sentencing and specifically
pointed to the changes in gang enhancements since the passage
of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill
No. 333). Nowhere in his request did he discuss section 1172.75
or his prior prison term enhancement pursuant to section 667.5,
subdivision (b).3
2 We note five years is the low term for attempted murder.
(See § 664, subd. (a).) Here, the court’s oral pronouncement
indicated its belief that five years is the middle term, while the
court’s minute order reflects its understanding that five years is
the low term. The June 19, 2017 abstract of judgment reflects
five years in count 1 is the high term.
3 We note, defendant also stated, “Also under the contest
[sic] of California … Assembly Bill No. 600 [which] amended
Sections 1172.1, 1172.5 of the Penal Code.” Section 1172.5 does
not exist.
In his reply brief, appellate counsel contends “[f]rom
context of the application, it can be reasonably inferred that
[defendant] meant to cite section 1172.75.” We disagree.
Nothing in the context of what defendant presented in his
request dealt with section 1172.75 or his one-year prison prior
3
While defendant’s request was pending, two hearings took
place in the trial court. During a hearing on September 10, 2024,
defense counsel said he was representing defendant “on the
483.”4 In a hearing held on January 15, 2025, the trial court
indicated defendant had “two different motions. One is an
[Assembly Bill No.] 600 [section] 1172.1. The other is a
resentencing motion pursuant to 1172.7(a).”5 The court’s minute
orders issued during these hearings are listed as proceedings
taking place pursuant to sections “1172.7(a)/1172.75(a).”
On February 5, 2025, the court issued an order summarily
denying defendant’s request for recall of his sentence and also
found, because defendant’s case is final, defendant was not
entitled to relief under Assembly Bill No. 333.
Defendant filed a timely notice of appeal. In it, along with
his original contentions regarding Assembly Bill No. 333,
defendant also argued the “court erred by failing to conduct a full
resentencing hearing to consider … his sentence is unauthorized
because it contains [a] one-year enhancement under [section]
enhancement. Moreover, even if we accepted counsel’s assertion,
Assembly Bill No. 600 did not amend section 1172.75.
4 Senate Bill No. 483 (2021–2022 Reg. Sess.) is the original
bill passed by the Legislature that formally enacted now-sections
1172.7 and 1172.75. We understand this to mean counsel was
representing him for purposes of a pending section
1172.7/1172.75 petition.
5 Section 1172.7 is the sister provision of section 1172.75.
Section 1172.7, subdivision (a), with some exceptions, invalidated
sentencing enhancements imposed pursuant to Health and
Safety Code section 11370.2.
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667.5[,] subd[ivision] (b)” and alleged his eligibility for relief
under section 1172.75.
On appeal, defendant contends he is entitled to relief
pursuant to section 1172.75 and, as such, full resentencing and
consideration of the effects of Assembly Bill No. 333 on his case.
Defendant also contends the abstract of judgment incorrectly lists
his five-year term on count 1 as the high term and asks this court
to order a corrected abstract of judgment be issued.
Respondent contends this court is without jurisdiction
because the court’s order on defendant’s section 1172.1
resentencing request is not appealable and, as such, defendant’s
appeal should be dismissed. We agree.
“The right to appeal is statutory only, and a party may not
appeal a trial court’s judgment, order or ruling unless such is
expressly made appealable by statute.” (People v. Loper (2015) 60
Cal.4th 1155, 1159.) Section 1172.1, subdivision (a) provides that
the trial court may, “on its own motion, … at any time if the
applicable sentencing laws at the time of original sentencing are
subsequently changed by new statutory authority or case law …
recall the sentence and commitment previously ordered and
resentence the defendant ….”
Section 1172.1, subdivision (c) expressly states, however, “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.”
Thus, “‘a defendant who chooses to file an unauthorized request
for resentencing has no right to a ruling.’” (People v. Roy (2025)
110 Cal.App.5th 991, 998, quoting People v. Hodge (2024) 107
Cal.App.5th 985, 996.) Section 1172.1 does not address whether
a trial court’s dismissal of a defendant’s request for recall and
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resentencing under the statute is appealable. But several courts,
including this court, have interpreted the second sentence in
section 1172.1, subdivision (c) to mean that defendants do not
have a substantial right at stake when they request recall and
resentencing. (People v. Hodge, supra, at p. 996; see People v.
Brinson (2025) 112 Cal.App.5th 1040; People v. Roy, supra, at
pp. 998–999; People v. Faustinos (2025) 109 Cal.App.5th 687,
696.)
Conversely, courts have found where the court undertakes
to make a resentencing decision on the merits after a defendant
has filed a petition pursuant to section 1172.1, defendant is
entitled to an appeal. (People v. Craig (2026) 117 Cal.App.5th
1165; People v. Olea (2025) 115 Cal.App.5th 889.) In Craig and
Olea, the trial courts reviewed the parties’ brief, considered
various documents including postconviction factors, and, after
hearing argument by the parties, the courts denied resentencing.
In these cases, the Courts of Appeal found “‘[c]onsidering the
entirety of the actions taken by the trial court following [the
defendant’s] initial petition—in conjunction with merit-based
statements made at the contested final hearing, the trial court
effectively evaluated and denied [the defendant’s] petition on the
merits, thus affecting [the defendant’s] substantial rights.
[Citation.] Therefore, we conclude that the trial court’s decision
is appealable.” (Craig, supra, at pp. 1172–1173, quoting Olea,
supra, 115 Cal.App.5th at p. 902.)
Here, the court did not undertake the merits of defendant’s
pro se section 1172.1 resentencing request. As such, his
substantial rights were not affected. Accordingly, the trial court’s
order was not appealable under section 1237, subdivision (b), and
the appeal must be dismissed. Because this court is without
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jurisdiction, we may not order the abstract of judgment be
corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185
[appellate court with “properly assumed jurisdiction” may correct
abstracts of judgment].)
To the extent defendant argues he is entitled to section
1172.75 relief, for the foregoing reasons we cannot reach the
merits of his contention. This result is further compelled where
based on the record before us, it appears defendant, represented
by counsel, may currently have a section 1172.75 matter pending
in the trial court.
DISPOSITION
The appeal is dismissed.
CHAVEZ, J.
We concur:
LUI, P. J.
RICHARDSON, J.
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