People v. Hernandez, 20 Cal. App. 5th 938 (Cal. Ct. App. 5th 2019). · Go Syfert
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People v. Hernandez, 20 Cal. App. 5th 938 (Cal. Ct. App. 5th 2019). Cases Citing This Book View Copy Cite
101 citation events (101 in the last 25 years) across 4 distinct courts.
Strongest positive: People v. George CA2/8 (calctapp, 2023-09-21)
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Top citers, strongest first. 40 distinct citers.
discussed Cited as authority (rule) People v. George CA2/8
Cal. Ct. App. · 2023 · confidence medium
(People v. Hernandez (2019) 34 Cal.App.5th 323, 326 [SB 620 inapplicable to final convictions]; People v. Ramos (2022) 77 Cal.App.5th 1116 , 1127 [AB 333 inapplicable to final convictions].) 4 DISPOSITION We affirm the order.
discussed Cited as authority (rule) Everett Lee Cox v. Pfiffer
C.D. Cal. · 2023 · confidence medium
Cal. 2022) (citing People v. Hernandez, 34 Cal. App. 5th 323, 326 (2019)). 24 For this reason, the denial of an SB 620 resentencing application for 25 a final conviction “does not constitute a new appealable post-judgment order,” and renders a federal petition “successive” to the prisoner’s original Section 2254 26 application.
discussed Cited as authority (rule) People v. Vaesau
Cal. Ct. App. · 2023 · confidence medium
(See, e.g., People v. Hernandez (2019) 34 Cal.App.5th 323, 326 [defendant could not appeal from denial of his own request for resentencing under former § 1170(d) made after judgment was final]; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725 [same]; see also Loper, at pp. 1165–1166.) Although the trial court had jurisdiction to rule on the district attorney’s motion to withdraw the resentencing request, the question remains whether granting the motion and thereby terminating the section 1172.1 proceeding affected Vaesau’s substantial rights.
discussed Cited as authority (rule) People v. Christon CA2/2
Cal. Ct. App. · 2022 · confidence medium
(People v. Hernandez (2019) 34 Cal.App.5th 323, 326 [Senate Bill No. 620 inapplicable to final convictions]; cf. People v. Ramos (2022) 77 Cal.App.5th 1116 , 1127 [Assembly Bill No. 333 applies to nonfinal convictions].) At this moment in time, defendant’s convictions are final convictions.
discussed Cited as authority (rule) People v. Monroe
Cal. Ct. App. · 2022 · confidence medium
(See People v. Hernandez (2019) 34 Cal.App.5th 323, 326 [“Senate Bill No. 620 . . . does not apply retroactive[ly] to cases that became final”]; People v. Johnson (2019) 32 Cal.App.5th 938 , 941–942 [same].) So too with Senate Bill No. 1393.
discussed Cited as authority (rule) People v. Bryant CA2/1
Cal. Ct. App. · 2021 · confidence medium
(See, e.g., People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 ; People v. Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez); People v. Alexander (2020) 45 Cal.App.5th 341 , 344.) 5 An exception applies, however, when the trial court acts under its authority to resentence a defendant pursuant to section 1170, subdivision (d).
discussed Cited as authority (rule) People v. Alvarez CA2/3
Cal. Ct. App. · 2021 · confidence medium
DISCUSSION “ ‘An order made after judgment affecting a defendant’s substantial rights is appealable. (§ 1237, subd. (b).) However, once a judgment is rendered, except for limited statutory exceptions (§§ 1170.126, 1170.18), the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170, subdivision (d). [Citation.] Section 1170, subdivision (d), allows a sentencing court … to recall and resentence, subject to the express limitation that the court must act to recall the sentence within 120 days after committing the def…
discussed Cited as authority (rule) People v. Williams CA2/4
Cal. Ct. App. · 2021 · confidence medium
Williams’s concession is well-taken. “‘“It is settled that the right of appeal is statutory and that a . . . order is not appealable unless expressly made so by statute.’”” (Teal v. Superior Court (2014) 60 Cal.4th 595, 598 .) And while a postjudgment order affecting a defendant’s substantial rights is appealable, subject to limited statutory exceptions, once a judgment has been rendered, a trial court is without jurisdiction to vacate or modify a sentence. (§ 1237, subd. (b); People v. Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez); People v. Fuimaono (2019) 32 Cal.App.…
discussed Cited as authority (rule) People v. Serrato CA5
Cal. Ct. App. · 2021 · confidence medium
(See People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327 [denial of Senate Bill No. 620 (2017-2018 Reg. Sess.) motion dismissed where trial court lacked jurisdiction to modify the defendant’s sentence]; People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 [same]; People v. Alexander (2020) 45 Cal.App.5th 341 , 344 [dismissing an appeal from an order denying the defendant’s post-judgment motion to strike enhancements for prior serious felony convictions under Senate Bill No. 1393 (2017-2018 Reg. Sess.), because the trial court lacked jurisdiction to grant the motion].) Finding no arguable i…
discussed Cited as authority (rule) People v. Flores CA2/4
Cal. Ct. App. · 2021 · confidence medium
“Because the trial court lacked jurisdiction to modify defendant’s sentence, denial of his motion to modify his sentence could not have affected his substantial rights. [Citation.] Accordingly, the ‘order denying [the] motion to modify sentence is not an appealable order,’ and the appeal must be dismissed.” (Ibid.; see also People v. Baltazar (2020) 57 Cal.App.5th 334 , 340–341 (Baltazar); People v. Hernandez (2019) 34 Cal.App.5th 323, 327 (Hernandez) [dismissing appeal]; People v. Johnson (2019) 32 Cal.App.5th 938, 941 [holding trial court had no jurisdiction to grant relief pursu…
discussed Cited as authority (rule) People v. Munoz CA3
Cal. Ct. App. · 2021 · confidence medium
(See People v. Alexander (2020) 45 Cal.App.5th 341 , 344 [dismissing appeal challenging denial of Senate Bill No. 1393 motion, reasoning, “[a]n order denying a motion the court lacks jurisdiction to grant does not affect a defendant’s substantial rights”]; People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327 [dismissing appeal challenging denial of Senate Bill No. 620 motion where trial court had lacked jurisdiction].) DISPOSITION The appeal is dismissed. /s/ RAYE, P. J.
discussed Cited as authority (rule) People v. Gower CA4/2
Cal. Ct. App. · 2021 · confidence medium
(People v. Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez).) Gower didn’t appeal the court’s order revoking mandatory supervision and executing his sentence, and that order became final for purposes of appeal on November 18, 2019.
discussed Cited as authority (rule) People v. Combs CA2/2 (2×)
Cal. Ct. App. · 2021 · confidence medium
(People v. Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez).) SB 620 and section 1016.8 apply retroactively only to nonfinal judgments.
discussed Cited as authority (rule) People v. Kendrick CA3
Cal. Ct. App. · 2021 · confidence medium
(People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327 [rejecting defendant’s equal protection full retroactivity argument].) Section 12022.53 extends the benefits of Senate Bill No. 620 to defendants who have exhausted their rights to appeal and for whom a judgment of conviction has been entered, but who have obtained collateral relief by way of a state or federal habeas proceeding or other post judgment motions.
discussed Cited as authority (rule) People v. Guerrero CA2/2
Cal. Ct. App. · 2021 · confidence medium
(People v. Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez).) Generally, once a judgment is rendered, “‘the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section[s] 1170, subdivision (d)[,]’” 1170.18 and 1170.126.
discussed Cited as authority (rule) People v. Kendrick CA3
Cal. Ct. App. · 2021 · confidence medium
(People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327 [rejecting defendant’s equal protection full retroactivity argument].) Section 12022.53 extends the benefits of Senate Bill No. 620 to defendants who have exhausted their rights to appeal and for whom a judgment of conviction has been entered, but who have obtained collateral relief by way of a state or federal habeas proceeding or other post judgment motions.
discussed Cited as authority (rule) People v. Kennedy CA3
Cal. Ct. App. · 2020 · confidence medium
Bill No. 1393 motion, reasoning, “An order denying a motion the court lacks jurisdiction to grant does not affect a defendant’s substantial rights”]; People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327 [dismissing appeal challenging denial of Sen.
discussed Cited as authority (rule) People v. Black CA2/7
Cal. Ct. App. · 2020 · confidence medium
(People v. Torres (2020) 44 Cal.App.5th 1081 , 1084; see People v. Alexander (2020) 45 Cal.App.5th 341 , 345 3 [dismissing an appeal from an order denying the defendant’s motion to strike enhancements for prior serious felony convictions under Senate Bill No. 1393, which amended section 667 to give trial courts discretion to strike or dismiss such enhancements, because the trial court lacked jurisdiction to grant the motion]; People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327 [dismissing an appeal from an order denying the defendant’s motion to dismiss a firearm enhancement under Senat…
discussed Cited as authority (rule) People v. Alonzo CA2/3 (2×)
Cal. Ct. App. · 2020 · confidence medium
(See, e.g., People v. Hargis (2019) 33 Cal.App.5th 199, 209 [“Because defendant’s judgment was final before the amendment went into effect, his case does not fall within Estrada’s qualification to the ordinary presumption that statutes operate prospectively.”]; People v. Hernandez, supra, 34 Cal.App.5th at p. 326 [Senate Bill 620 “does not apply retroactivity to cases that became final”]; People v. Fuimaono, supra, 32 Cal.App.5th at p. 135 [Senate Bill 620 “does not contain language authorizing resentencing of convictions after they became final”]; People v. Harris, supra, 22 C…
examined Cited as authority (rule) People v. Alexander (3×) also: Cited "see"
Cal. Ct. App. · 2020 · confidence medium
(People v. Zapien (1993) 4 Cal.4th 929, 976 [appellate court reviews result, not rationale].) “‘“[A] judgment or order is not appealable unless expressly made so by statute.” [Citations.]’ [Citation.]” (People v. Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez).) Section 1237, subdivision (b), makes appealable a court’s postjudgment order if that order affects a defendant’s substantial rights.
discussed Cited as authority (rule) Drawn v. Nueschid
N.D. Cal. · 2019 · confidence medium
Subsequent California cases 18 have held that the SB 620 amendments do “not apply retroactively to cases that [have become] 19 final.” People v. Hernandez, 34 Cal. App. 5th 323, 326 (2019) (citing People v. Johnson, 32 20 Cal.App.5th 938 (2019)).
discussed Cited as authority (rule) (HC) Aleman v. Robertson
E.D. Cal. · 2019 · confidence medium
United States v. Wilson, 631 F.2d 118 , 119 1 132, 135 (Cal. Ct. App. 2019) (holding that because Senate Bill No. 620 does not contain 2 language authorizing resentencing of convictions after they become final, the trial court lacked 3 jurisdiction to grant defendant’s resentencing request and thus denial of resentencing was not an 4 appealable post-judgment order); People v. Hernandez, 34 Cal. App. 5th 323, 327 (Cal. Ct. App. 5 2019), review denied, No. S256021 (Cal. July 24, 2019); People v. Johnson, 32 Cal. App. 5th 6 938, 941, (Cal. Ct. App. 2019), review denied, No. S254998 (Cal. June 1…
discussed Cited "see" People v. Sams CA5
Cal. Ct. App. · 2026 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant generally must file a petition for 7. writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339 ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75).
discussed Cited "see" People v. Sheppard CA5
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) “A lack 5. of jurisdiction in its fundamental or strict sense results in ‘ “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” ’ ” (People v. Lara (2010) 48 Cal.4th 216, 224 .) “ ‘[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent.
discussed Cited "see" People v. Kendrick CA5
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339 ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75).
discussed Cited "see" People v. Johnson CA5
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339 ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75).
discussed Cited "see" People v. Miles CA5
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339 ) or proceed by way of a special statutory procedure (e.g., Pen.
discussed Cited "see" People v. Roberts CA5
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339 ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75).
discussed Cited "see" People v. Galafate CA5
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339 ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75).
discussed Cited "see" People v. Gonsalves CA5
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) “A lack of jurisdiction in its fundamental or strict sense results in ‘“an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.”’” (People v. Lara (2010) 48 Cal.4th 216, 224 .) “‘[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent.
discussed Cited "see" People v. Jenkins CA5
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339 ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75).
discussed Cited "see" People v. Vaca CA5
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant must file a petition for writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339 ), or proceed by way of a special statutory procedure (e.g., Pen.
discussed Cited "see" People v. Chatman
Cal. Ct. App. · 2025 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant must file a petition for writ of habeas corpus (see In re G.C. (2020) 8 Cal.5th 1119 , 1130), or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75).
discussed Cited "see" People v. Hernandez
Cal. Ct. App. · 2024 · signal: accord · confidence high
(People v. Karaman (1992) 4 Cal.4th 335, 344 (Karaman), citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) To obtain resentencing on a final judgment, a defendant must file a petition for writ 7. of habeas corpus (G.C., supra, 8 Cal.5th at p. 1130), or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75).
examined Cited "see" People v. Sandoval CA2/7 (3×) also: Cited "see, e.g."
Cal. Ct. App. · 2020 · signal: see · confidence high
(People v. Johnson (2019) 32 Cal.App.5th 938, 942 [amendments to sections 12022.53 and 12022.5 apply to those whose convictions are not yet final or who have obtained collateral relief by way of a state or federal habeas corpus proceeding]; see People v. Hernandez (2019) 34 Cal.App.5th 323, 326 ; People v. Woods (2018) 19 Cal.App.5th 1080, 1091 .) The trial court therefore lacked jurisdiction to modify Sandoval’s sentence.
discussed Cited "see" People v. Lopez CA2/8
Cal. Ct. App. · 2020 · signal: see · confidence high
(People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 ; see People v. Hernandez (2019) 34 Cal.App.5th 323, 327 ; People v. Johnson (2019) 32 Cal.App.5th 938 , 941–942.) We affirm the portion of the order denying the Franklin hearing.
discussed Cited "see" People v. Barragan CA2/8
Cal. Ct. App. · 2020 · signal: see · confidence high
(People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 ; see People v. Hernandez (2019) 34 Cal.App.5th 323, 327 ; People v. Johnson (2019) 32 Cal.App.5th 938 , 941–942.) The amendments made by AB 1812 did not change the substantive requirements to recall a sentence under Penal Code section 1170, subdivision (d)(1), which did not permit the court to grant Barragan’s petition to reopen the final judgment for SB 620 resentencing. ( Fuimaono, supra, at p. 134 .) DISPOSITION The appeal is dismissed.
discussed Cited "see, e.g." People v. Fullmore CA3
Cal. Ct. App. · 2023 · signal: see also · confidence medium
(See People v. Loper, supra, 60 Cal.4th at pp. 1165-1166 [because the court in Chlad lacked own- motion jurisdiction to resentence, its refusal to resentence could not have affected defendant’s legal rights]; People v. Chlad, supra, 6 Cal.App.4th at p. 1726 [same]; see also People v. Hernandez (2019) 34 Cal.App.5th 323, 325-326 [denial of motion to strike firearm enhancement brought outside of 120-day window].) Therefore, we must dismiss this appeal as being from a nonappealable order.
discussed Cited "see, e.g." People v. Badillo CA3
Cal. Ct. App. · 2022 · signal: see also · confidence medium
(See People v. Loper, supra, 60 Cal.4th at pp. 1165-1166 [because court in Chlad lacked own- motion jurisdiction to resentence, its refusal to resentence could not have affected defendant’s legal rights]; People v. Chlad, supra, 6 Cal.App.4th at p. 1726 [same]; see also People v. Hernandez (2019) 34 Cal.App.5th 323, 325-326 [denial of motion to strike firearm enhancement brought outside of 120-day window].) This would require dismissal of the appeal as being from a nonappealable order.
discussed Cited "see, e.g." People v. Fuller CA4/2
Cal. Ct. App. · 2022 · signal: see also · confidence low
“Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence 11 has commenced.” (People v. Karaman (1992) 4 Cal.4th 335, 344 , citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455 ; Holder v. Superior Court (1970) 1 Cal.3d 779, 783 ; see also People v. Hernandez (2019) 34 Cal.App.5th 323, 326 .) Thus, after a judgment is final, there must be a jurisdictional basis for a court to act, whether by a special statutory procedure (e.g., §§ 1170, subd. (d)(2) [petitions to recall sentences of life without possi…
The PEOPLE, and
v.
Salvador HERNANDEZ, and
2d Crim. No. B287551.
California Court of Appeal, 5th District.
Apr 15, 2019.
✓ 20 Cal. App. 5th 938
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant., Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Wyatt E. Bloomfield and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent.
Tangeman.
Cited by 77 opinions  |  Published
TANGEMAN, J.

[*325] Salvador Hernandez appeals from the trial court's order denying his motion to strike personal firearm enhancements ( Pen. Code,[1] § 12022.5, subds. (a) & (d) ) that were imposed pursuant to a judgment that became final before the motion was filed. We conclude the challenged order is not appealable and accordingly dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

In October 2016, Hernandez pled guilty to two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). He also admitted that he personally inflicted great bodily injury in committing one of the assaults (§ 12022.7), and personally used a firearm in committing both offenses ( § 12022.5, subds. (a) & (d) ). The trial court sentenced him to nine years in state prison. The sentence includes one consecutive and one concurrent three-year term for the personal firearm use enhancements.

Hernandez appealed his sentence and we affirmed. ( People v. Hernandez (Aug. 14, 2017, B280231) 2017 WL 3472769 [nonpub. opn.].) He did not seek further review and the remittitur was issued on November 16, 2017.

On December 15, 2017, Hernandez filed a motion in the trial court seeking to strike the firearm enhancements on the grounds that (1) in accepting his guilty plea the trial court erroneously referred to subdivision (b) of section 12022.5 rather than subdivision (d); and (2) subdivision (d) only applies to assaults with a firearm committed by means of a drive-by shooting. The motion was heard and denied on January 8, 2018. Hernandez filed a timely notice of appeal.

DISCUSSION

Hernandez does not challenge the trial court's rulings on either of the claims raised in his postjudgment motion to strike[*89] his firearm enhancements. Instead, he contends the matter must be remanded for resentencing pursuant to Senate Bill No. 620, which amended section 12022.5 to give trial courts discretion to strike firearm enhancements in the interests of justice. Although those amendments went into effect shortly before Hernandez's motion was heard, he claims the issue "is preserved for appeal" because "[o]nly after the January hearing[ ] did the courts decide the retroactivity of the new amendments." He alternatively claims that trial counsel provided ineffective assistance by failing to raise the issue below.[*326] The People respond that the challenged order is not appealable. We agree. " 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' [Citations.]" ( People v. Mazurette (2001) 24 Cal.4th 789, 792, 102 Cal.Rptr.2d 555, 14 P.3d 227.) "An order made after judgment affecting a defendant's substantial rights is appealable. (§ 1237, subd. (b).) However, once a judgment is rendered, except for limited statutory exceptions (§§ 1170.126, 1170.18), the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170, subdivision (d). [Citation.] Section 1170, subdivision (d), allows a sentencing court on its own motion to recall and resentence, subject to the express limitation that the court must act to recall the sentence within 120 days after committing the defendant to prison. [Citation.] Indeed, 'the court loses "own-motion" jurisdiction if it fails to recall a sentence within 120 days of the original commitment. [Citations.]' [Citation.]" ( People v. Fuimaono (2019) 32 Cal.App.5th 132, 134, 243 Cal.Rptr.3d 545.)

Judgment was rendered against Hernandez on November 28, 2016. That judgment became final on November 16, 2017. Hernandez filed his motion on December 15, 2017. Because the court lacked jurisdiction to grant the relief requested in Hernandez's motion, the order denying the motion did not affect his substantial rights as contemplated in section 1237, subdivision (b). ( People v. Turrin (2009) 176 Cal.App.4th 1200, 1208, 98 Cal.Rptr.3d 471.) The claims raised in the motion also could have been raised on direct appeal from the judgment. (See People v. Totari (2002) 28 Cal.4th 876, 882, 123 Cal.Rptr.2d 76, 50 P.3d 781 [recognizing that "ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment"].)

Moreover, even assuming that Hernandez did not forfeit his claim regarding Senate Bill No. 620, the new law does not apply retroactivity to cases that became final. ( People v. Johnson (2019) 32 Cal.App.5th 938, 244 Cal.Rptr.3d 361.) In contending otherwise, Hernandez relies upon subdivision (c) of section 12022.5, which states: "The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." In emphasizing the reference to "any resentencing," however, Hernandez fails to give effect to the limitation which follows, i.e., that Senate Bill No. 620 applies only to any resentencing "that may occur pursuant to any other law." Because Hernandez has not been resentenced pursuant to any other law, this limited exception is not applicable here.

Hernandez also contends that the failure to apply full retroactivity to Senate Bill No. 620 would result in an equal[*327] protection violation. A similar argument was rejected in In re Kapperman (1974) 11 Cal.3d 542, 546, 114 Cal.Rptr. 97, 522 P.2d 657, in which our Supreme Court stated that statutes lessening the punishment for specific offenses could be limited to prospective[*90] application in order "to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written." Senate Bill No. 620 is an example of this principle.

For these reasons, we agree with our colleagues in the Third Appellate District that Senate Bill No. 620 "does not contain language authorizing resentencing of convictions after they became final. And absent any new authority to resentence [Hernandez] under Senate Bill No. 620, the trial court lacked jurisdiction to grant [Hernandez's] resentencing request. [Citation.] Because the trial court lacked jurisdiction to modify [Hernandez's] sentence, denial of his motion to modify his sentence could not have affected his substantial rights. [Citation.]" ( People v. Fuimaono , supra , 32 Cal.App.5th at p. 135, 243 Cal.Rptr.3d 545.) Accordingly, the appeal must be dismissed. ( Ibid . )

DISPOSITION

The appeal is dismissed.

We concur:

GILBERT, P. J.

YEGAN, J.

1

All further statutory references are to the Penal Code.