Filed 8/4/26 P. v. Steele CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B346605
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA031330)
v.
DAMIAN STEELE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel J. Lowenthal, Judge. Dismissed and
remanded.
Damian Steele, in pro. per.; Mordecai Garelick, under
appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
__________________________
Damian Steele appeals from the superior court’s
postjudgment order declining his request to recall and resentence
him pursuant to Penal Code1 section 1172.1. We appointed
counsel to represent Steele on appeal. After reviewing the record,
counsel for Steele filed a brief pursuant to People v. Delgadillo
(2022) 14 Cal.5th 216 that did not identify any arguable issues.
After reviewing the contentions raised in Steele’s supplemental
brief, we have not identified any either. We dismiss the appeal
as taken from a nonappealable order but order the superior court
to correct the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Between October 18 and December 27, 1996, Steele
committed a series of armed carjackings, robberies and assaults.
Steele was charged by information with four counts of carjacking
(§ 215, subd. (a)(1); counts 1, 2, 4, and 9); four counts of second
degree robbery (§ 211; counts 3, 5, 7 and 10); one count of
attempted second degree robbery (§§ 664, 211; count 6); one count
of assault with a deadly weapon (§ 245, subd. (a)(1); count 8); and
one count of being a felon in possession of a firearm (§ 12021,
subd. (a)(1); count 11). As to each count, Steele was alleged to
have suffered a prior serious felony (§ 667, subd. (a)(1)) and a
prior prison term (§ 667.5, former subd. (b).) Steele was convicted
on all counts and sentenced in 1998 to an aggregate term of 50
years.2
1 All statutory references are to the Penal Code.
2 Although it is not reflected in the abstract for judgment,
the minute order from Steele’s sentencing reflects that the trial
court imposed but stayed the one-year prior prison term
2
In 2025 Steele filed a request for recall of sentence and
resentencing pursuant to section 1170.1. In his two-page motion,
Steele argued that he was eligible for relief due to ameliorative
changes in the law, and that he needs “these priors taken off
[because] I’m 51 years old, hearing impaired, [and] in a walker.”
He also noted he has been away from his family and has not seen
his mother in 28 years.
enhancement under section 667.5, former subdivision (b). The
California Supreme Court recently held that, in this
circumstance, a defendant is entitled to recall and resentencing
under section 1172.75, subdivision (a), to have the stayed prior
prison term enhancement stricken and to receive a “full
resentencing” at which the superior court must “ ‘consider a
broad range of factors ..., including “changes in law that reduce
sentences” [citation] and postconviction factors that inure in the
defendant’s favor.’ ” (People v. Espino (July 2, 2026, S286987)
__ Cal.5th __ [2026 Cal. Lexis 3418, at p. 2]; accord, People v.
Rhodius (2025) 17 Cal.5th 1050, 1067.)
We have no jurisdiction at this juncture to address Steele’s
eligibility for resentencing under section 1172.75. However, we
direct the superior court to correct the abstract of judgment to
reflect that Steele’s sentence includes a one-year prior prison
term enhancement under section 667.5, former subdivision (b),
that was imposed but stayed. (People v. Singleton (2025)
113 Cal.App.5th 783, 790-791 [“the court has inherent power to
correct a clerical error at any time”].) Without this correction, the
Department of Corrections and Rehabilitation would be unable to
satisfy its duty to identify and notify the sentencing court that
Steele is a person serving a term for a judgment that includes a
section 667.5, former subdivision (b), enhancement. (§ 1172.75,
subd. (b).)
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The superior court indicated it had read Steele’s request for
recall of sentence and resentencing under section 1172.1, and
“respectfully decline[d] to exercise its discretion to recall Mr.
Steele’s sentence.” This appeal follows.
DISCUSSION
We appointed counsel to represent Steele in this appeal.
After reviewing the record, counsel did not identify any arguable
issues and indicated that “[t]his court should determine
appealability.” On April 30, 2026 counsel advised Steele that he
was filing a brief stating he was unable to find any arguable
issues and that Steele could personally submit a supplemental
brief. Counsel also indicated in his declaration that he would
send Steele the transcripts of the record on appeal as well as a
copy of his brief.
On June 2, 2026 we received a one-page handwritten
supplemental brief from Steele. Steele argues (1) “issues ... need
to be corrected due to law ... I was a juvenile when I got convicted
[and] I’m not the same person [as] 30 years ago,” and
(2) appellate counsel provided ineffective assistance by filing a
“no issues brief.”
“Under section 1172.1, a trial court may recall a sentence
and resentence a defendant ‘at any time’ upon the
recommendation of various designated correctional or law
enforcement authorities, including the Secretary or the Board of
Parole Hearings, the county correctional administrator, the
district attorney of the county in which the defendant was
sentenced, or the Attorney General. (§ 1172.1, subd. (a)(1).) The
trial court may also recall and resentence a defendant on its ‘own
motion’ within 120 days of the date of commitment. (§ 1172.1,
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subd. (a)(1).) In addition, pursuant to an amendment effective
January 1, 2024, a trial court now also has jurisdiction to recall a
sentence and resentence a defendant 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.’ (§ 1172.1, subd. (a)(1); Assem. Bill No. 600 (2023-
2024 Reg. Sess.)” (People v. Olea (2025) 115 Cal.App.5th 889,
896-97.)
However, “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.’ ” (People v. Brinson
(2025) 112 Cal.App.5th 1040, 1046; see § 1172.1, subd. (c) [“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.”]; People v. Olea, supra, 115 Cal.App.5th at pp. 896-897;
People v. Roy (2025) 110 Cal.App.5th 991, 998-999 [§ 1172.1 does
not entitle a defendant “to petition the court for relief” and a
petition filed by defendant “is best viewed as merely inviting the
court to consider whether it wishes to exercise its discretion
under section 1172.1”].)
Because a defendant has no right to a superior court ruling
when he or she requests consideration for relief under section
1172.1, the court’s choice not to act on the defendant’s petition
does not deprive the defendant of a substantial right. (People v.
Brinson, supra, 112 Cal.App.5th at p. 1046.) Accordingly, a
superior court’s decision declining a defendant’s invitation to
recall his sentence under section 1172.1 is not appealable. (See
id. at p. 1045; People v. Faustinos (2025) 109 Cal.App.5th 687,
5
697 [“there is no appellate jurisdiction over an order declining to
act on a defendant’s unauthorized section 1172.1 petition”].)
Because Steele initiated the section 1172.1 petition and the
superior court declined to act on it, we lack jurisdiction over
Steele’s appeal.
Further, Steele’s contention that appellate counsel
rendered ineffective assistance because “he filed a no issues brief”
lacks merit. (See People v. Serrano (2012) 211 Cal.App.4th 496,
503 [attorney satisfies professional duties by filing no-issues
brief].) Appellate counsel does not render deficient performance
by failing to raise meritless issues. (See People v. Lucero (2000)
23 Cal.4th 692, 732.) Counsel was not deficient for implicitly
acknowledging that the courts uniformly have held a superior
court’s order declining to address a defendant’s petition under
section 1172.1 is not appealable.
DISPOSITION
The appeal is dismissed. The superior court is directed to
correct the abstract of judgment to reflect that Steele’s sentence
includes a one-year prior prison term enhancement under section
667.5, former subdivision (b), that was imposed but stayed.
STONE, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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