Filed 3/19/18
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                              (Siskiyou)
                                                 ----




THE PEOPLE,                                                       C081532

                  Plaintiff and Respondent,                (Super. Ct. No. MCYK-
                                                             CRBF-2007-624-2)
        v.

MIGUEL ANGEL CABRERA,

                  Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Siskiyou County, Karen L.
Dixon, Judge. Affirmed.

      Michael Satris, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Eric L.
Christoffersen, Deputy Attorney General, for Plaintiff and Respondent.




                                                  1
        Defendant Miguel Angel Cabrera is currently serving a three strikes sentence for
assault with force likely to produce great bodily injury (GBI) and battery with serious
bodily injury (SBI). He appeals from the trial court’s denial of his Penal Code section
1170.126 petition for resentencing. 1 Defendant contends the trial court erred in declining
to vacate the original sentencing court’s finding that his current convictions (for assault
and battery) were serious felonies, which he argues would have paved the way to his
eligibility for resentencing.
        As we will explain, the serious felony findings (made in 2008 by the sentencing
court) were not subject to review by the trial court assigned to hear the section 1170.126
petition in 2015. Further, the resulting classification, even if incorrect, would not
constitute an unauthorized sentence. Accordingly, we shall affirm the trial court’s order
denying the petition.
                                     BACKGROUND
        Original Convictions
        Because the facts of defendant’s original convictions are not relevant to our
resolution of his claims on appeal, we do not recite them here. It suffices to say that
defendant was charged by indictment with assault by means of force likely to produce
GBI (§ 245, subd. (a)(1)--count 1), battery with SBI (§ 243, subd. (d)--count 2), assault
with a deadly weapon (former § 245, subd. (a)(2)--count 3), and actively participating in
a street gang (§ 186.22, subd. (a)--count 4). The charges also included gang
enhancements (§ 186.22, subd. (b)(1)) as to counts 1 through 3, a special allegation of
personally inflicting GBI (§ 12022.7, subd. (a)) as to count 1, an allegation of personal
infliction of GBI to classify count 2 as a serious felony (§§ 667, 1192.7), as well as four
prior strikes (§ 1170.12) and four prior serious felony allegations (§ 667, subd. (a)(1)).




1   Further undesignated statutory references are to the Penal Code.

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       The jury found defendant guilty on counts 1, 2, and 4, but found the gang
allegations not true. It could not reach verdicts on count 3 and the GBI allegations as to
counts 1 and 2, but sustained the strike and prior serious felony allegations. The trial
court declared a mistrial as to count 3 and the GBI allegations.
       At the sentencing hearing, the defense objected to serious felony findings on any
of the counts of conviction, and the parties argued at length about the effect, if any, that
the jury’s failure to reach verdicts on the GBI allegations would have on the potential
classification of counts 1 (assault) and 2 (battery with SBI) as serious felonies. The
defense further argued defendant was entitled to a jury determination before the court
could find GBI and thus classify counts 1 and 2 as serious felonies. The sentencing court
found that counts 1, 2, and 4 were indeed serious felonies based on its determination that
“there [was] great bodily injury” but did not elaborate further on the basis or rationale for
that decision. The court sentenced defendant to 30 years to life in prison on count 1,
consisting of 25 years to life in prison on count 1, plus a consecutive five years for the
prior felony allegation, and identical concurrent terms on counts 2 and 4.
       On appeal, we reversed the conviction on count 4 and ordered corrections to the
abstract. (People v. Cabrera (Nov. 17, 2009, C058828) [nonpub. opn.].) The serious
felony classifications at issue here were not challenged on appeal from the judgment of
conviction. 2
       Section 1170.126 Petition
       On September 4, 2014, defendant filed a section 1170.126 petition for
resentencing. As relevant here, the People argued that the original sentencing court had
already found defendant’s crimes of conviction to be serious felonies and therefore



2 On our own motion, we take judicial notice of our opinion in case No. C058828 and
incorporate by reference the appellate record in that case. (Evid. Code, §§ 452, subd. (d);
459.)

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defendant was not eligible for relief, because he was serving his current term for a serious
felony. (§ 1170.126, subd. (e)(1).)
       Defendant argued that the evidence did not support the sentencing court’s serious
felony findings (made in 2008), and the findings violated Apprendi v. New Jersey (2000)
530 U.S. 466 [147 L.Ed.2d 435]. In support of his argument, he cited People v. Taylor
(2004) 118 Cal.App.4th 11 (Taylor), which held that an acquittal on a GBI allegation
precluded finding that a battery with SBI conviction was a serious felony due to personal
infliction of GBI. (Id. at p. 29.) He asked the trial court for “a ruling . . . that the original
sentencing court committed error.” He characterized the proposed ruling as a “proper
exercise of discretion” by the trial court.
       At the final hearing on the petition, the trial court noted that at the original
sentencing hearing the People had cited (to the sentencing court) cases holding sections
243 (SBI) and 12022.7 (GBI) were essentially equivalent. Citing Taylor, the court
opined that the jury’s failure to return a verdict on the GBI allegations prevented it from
considering the section 243 conviction as the equivalent of a GBI finding. However, the
court concluded that it could not find defendant eligible for relief because the sentencing
court’s finding that the current crimes were serious felonies was a final judgment.
Defendant timely appealed from the trial court’s denial of defendant’s petition for
resentencing.
                                        DISCUSSION
                                                I
                          Section 1170.126 and Defendant’s Claim
       Following the passage of Proposition 36, the Three Strikes Reform Act of 2012
(the Act), a defendant convicted of a felony with two or more prior strike allegations is
subject to a 25-year-to-life sentence if the current conviction is a serious or violent felony
but is subject only to a two strike sentence if the current felony is not serious or violent.



                                                4
(§§ 667, subds. (e)(2)(A), (C), 1170.12, subds. (c)(2)(A), (C); People v. Yearwood (2013)
213 Cal.App.4th 161, 170.)
        Section 1170.126 allows a person presently serving a three strikes sentence for a
felony that is neither serious nor violent to petition the trial court for resentencing as a
second strike offender subject to certain disqualifying exceptions. (§ 1170.126, subds.
(a), (e).) If the prisoner is not subject to one of the disqualifying factors, then the trial
court shall resentence him under the two strikes provision “unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (Id., subd. (f).)
        Under section 667, subdivision (a), a person convicted of a serious felony who has
previously been convicted of a serious felony is subject to a five-year enhancement. In
this case, the sentencing court’s explicit finding that defendant’s current offenses were
serious felonies (and therefore subject to the section 667, subdivision (a) enhancement for
his prior convictions, which the sentencing court imposed in 2008) renders defendant
ineligible for resentencing under the Act. (§ 1170.126, subd. (e)(1).)
        Thus, defendant was ineligible for relief unless the trial court had the authority to
vacate the explicit findings made by the sentencing court when it rendered judgment in
2008.
        Defendant advances the theory on appeal that the trial court had the authority to
vacate the sentencing court’s findings because they resulted in an unauthorized sentence.
He contends the sentencing court erred in finding that the underlying crimes of
conviction--assault and battery causing SBI--were serious felonies, and consequently
imposing five-year enhancements for the prior serious felony allegations found true. It
follows that, due to this error, the serious felony findings on his current offenses resulted
in an unauthorized sentence that the trial court should have corrected and that this court is
now obliged to correct. Defendant concludes that upon correction of the unauthorized
sentence, he is entitled to resentencing based on the trial court’s more favorable findings.

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                                             II
                                          Analysis
       A. Jurisdiction is Limited
       “Subject to limited exceptions, well-established law provides that the trial court is
divested of jurisdiction once execution of a sentence has begun.” (People v. Scarbrough
(2015) 240 Cal.App.4th 916, 923.) Section 1170.126 is one exception to this rule,
vesting the trial court with the jurisdiction to resentence qualified defendants serving
three strikes sentences. However, that jurisdiction is limited. Section 1170.126 “merely
provides a limited mechanism within which the trial court may consider a reduction of
the sentence below the original term,” and “the potential reduction of the sentence is
narrowly circumscribed by the statute.” (People v. Bradford (2014) 227 Cal.App.4th
1322, 1336.) “[A] section 1170.126 proceeding is not a ‘plenary resentencing
proceeding.’ [Citation.]” (People v. Clark (2017) 8 Cal.App.5th 863, 873 (Clark).)
       Clark illustrates the limits of section 1170.126 jurisdiction. Clark was convicted
and received a three strikes sentence, and his conviction was affirmed on appeal. (Clark,
supra, 8 CalApp.5th at p. 867.) He subsequently filed a habeas petition attacking one of
the prior strikes, a 1974 conviction for lewd and lascivious conduct (§ 288, subd. (a))
based on an alleged Boykin/Tahl violation (Boykin v. Alabama (1969) 395 U.S. 238
[23 L.Ed.2d 27]; In re Tahl (1969) 1 Cal.3d 122) and a claim that he was not informed he
would have to register as a sex offender as a result of the plea (Clark, at pp. 867-868).
The petition was denied and the denial upheld. (Id. at p. 868.)
       Clark subsequently filed a section 1170.126 petition in which he reiterated his
attack on the 1974 prior. (Clark, supra, 8 CalApp.5th at p. 868.) The First Appellate
District, Division Two found defendant’s “argument begs the fundamental question,
which is whether the trial court had authority to consider a Boykin/Tahl challenge to the
1974 prior in the context of a petition for resentencing under section 1170.126.” (Id. at
p. 873.) Since “[n]othing in section 1170.126 authorizes a collateral attack on a prior

                                              6
strike conviction,” Clark could not use the section 1170.126 proceeding to litigate his
Boykin/Tahl claim. (Id. at p. 873.)
       A similar result was reached by the same appellate court in People v. Brown
(2014) 230 Cal.App.4th 1502. Brown filed a section 1170.126 petition asking the trial
court to invoke its power under section 1385 to strike a prior conviction that rendered
him ineligible for resentencing. (Brown, at p. 1511.) The appellate court recognized the
trial court lacked jurisdiction to resentence a defendant after the sentence was executed
(ibid.) and held the Act did not extend a general grant of jurisdiction to resentence a
defendant. “Section 1170.126 grants a trial court the power to determine an inmate’s
eligibility to be resentenced under the Reform Act only if the inmate satisfies the three
criteria set out in subdivision (e) of the statute, as previously noted, and contains no
provision authorizing a trial court to disregard the required criteria. (§ 1170.126, subd.
(e).) Rather, the plain language of subdivision (e) clearly provides that an inmate must
first satisfy each criteria set out in subdivision (e) of section 1170.126 before he or she
can be resentenced under the Reform Act, and gives the trial court no discretion to depart
from the three-step requirement. In other words, if the inmate does not satisfy one or
more of the criteria, section 1170.126 grants the trial court no power to do anything but
deny the petition for recall of sentence.” (Brown, at pp. 1511-1512.)
       Revisiting and vacating the sentencing court’s conclusion that defendant’s prior
convictions were serious felonies under the relevant statutory scheme is therefore beyond
the scope of section 1170.126’s limited grant of jurisdiction.
       B. The 2008 Sentence was not Unauthorized
       Aware of the obstacle that the relevant case law presents to his argument of error
by the trial court, defendant argues that the sentencing court’s findings in this regard
should be reviewable nonetheless, both below and now on appeal, because the sentencing
court’s alleged error in classifying the prior convictions as serious resulted in an
unauthorized sentence. “Although the cases are varied, a sentence is generally

                                              7
‘unauthorized’ where it could not lawfully be imposed under any circumstance in the
particular case. Appellate courts are willing to intervene in the first instance because
such error is ‘clear and correctable’ independent of any factual issues presented by the
record at sentencing.” People v. Scott (1994) 9 Cal.4th 331, 354.) The error involved in
an unauthorized sentence is not subject to forfeiture, and can never be harmless. (Ibid;
People v. Soto (2016) 245 Cal.App.4th 1219, 1235.) An unauthorized sentence may be
corrected at any time by a court with jurisdiction. (See People v. Turrin (2009)
176 Cal.App.4th 1200, 1205.)
       Defendant’s claim of correctable error is based on Taylor. In Taylor, the jury
convicted the defendant of battery with SBI, assault by means of force likely to produce
GBI, and willful infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)), but
found not true the GBI allegations as to each of the three charged crimes. (Taylor, supra,
118 Cal.App.4th at pp. 17-18.) Notwithstanding the not true finding on the GBI
allegations, the trial court found that Taylor’s current offense was a serious felony. (Id. at
p. 22.) Faced with an express jury finding that Taylor had not inflicted GBI, the Taylor
court held that the imposition of the enhancement violated his statutory and constitutional
right to a jury trial. (Id. at pp. 20, 30.)
       The decision in Taylor was limited to the particular facts of that case. (See Taylor,
supra, 118 Cal.App.4th at p. 22 [“On the Particular Facts of This Case, the Trial Court
Erred in Treating Taylor’s Conviction for Battery with Serious Bodily Injury as
Equivalent to a Finding of Great Bodily Injury”].) The Taylor court recognized the
general rule that SBI as used in section 243 is synonymous with GBI in section 12022.7.
(Taylor, at pp. 22, 25-26; see People v. Johnson (2016) 244 Cal.App.4th 384, 391
[“California courts have long held that ‘serious bodily injury,’ as used in section 243, and
‘great bodily injury,’ as used in section 12022.7, are essentially equivalent”].) The jury’s
not true findings on the GBI allegations were key to distinguishing this general principle
in Taylor. (See Taylor, at p. 27.) That essential fact is not present here; a failure to reach

                                              8
a verdict on an enhancement is not an affirmative rejection of the enhancement as an
acquittal or finding of not true would be.
       This difference is grounds for distinguishing Taylor. (See People v. Arnett (2006)
139 Cal.App.4th 1609, 1615 [“Taylor is readily distinguishable from the present matter.
Here, the jury did not make a determination on the great bodily injury enhancement and
defendant waived jury trial on the issue for purposes of the serious prior felony
enhancement”].)
       But even of greater import in this case is the fact that violation of the statutory
right to a jury trial on enhancements is subject to harmless error review. (See People v.
French (2008) 43 Cal.4th 36, 53 (French); People v. Epps (2001) 25 Cal.4th 19, 29-30.)
“An unauthorized sentence is just that. It is not subject to a harmless error analysis. Nor
does it ripen into a sentence authorized by law with the passage of time.” (In re Birdwell
(1996) 50 Cal.App.4th 926, 930.) This is not merely a matter of labeling. Determining
whether an error is harmless requires analysis of the facts and circumstances of the case,
and presumes that there are circumstances under which the erroneous sentence can be
imposed. Such qualities are antithetical with an unauthorized sentence.
       The constitutional right to a jury trial on enhancements that was violated by the
trial court in Taylor is based on Apprendi. (See Taylor, supra, 118 Cal.App.4th at pp. 28-
30.) Apprendi error is also subject to harmless error analysis. (Washington v. Recuenco
(2006) 548 U.S. 212, 221-222 [165 L.Ed.2d 466]; United States v. Cotton (2002)
535 U.S. 625, 627, 631-632 [152 L.Ed.2d 860]; French, supra, 43 Cal.4th at pp. 52-53;
People v. Taulton (2005) 129 Cal.App.4th 1218, 1226.) The cases finding Apprendi error
subject to harmless error analysis typically address failures to submit alleged facts to the
jury for findings before these facts are cited to the court to increase a defendant’s
sentence. (See, e.g., Washington v. Recuenco, supra, 548 U.S. at pp. 215-216; French,
supra, 43 Cal.4th at pp. 52-53.) Here, the fact of GBI was alleged and submitted to the
jury, but the jury failed to reach verdicts thereon. Because of the resulting lack of

                                              9
verdicts, defendant argues a violation of his right to jury findings on facts used to
increase his sentence. This claim is subject to harmless error analysis and therefore
cannot result in an unauthorized sentence.
       Even were we to analyze the 2008 findings challenged here, which we do not, and
conclude that the sentencing court erred in 2008 when it classified the assault and battery
convictions as serious felonies and imposed five-year terms for the corresponding section
667, subdivision (a) allegations accordingly, that claim could not be presented to the trial
court in 2015, as it correctly ruled. The sentencing court’s 2008 findings were not
appealed and are now final; the fact that defendant’s crimes were found to be serious
felonies rendered him ineligible for relief under section 1170.126.
                                      DISPOSITION
       The judgment (order) is affirmed.




                                                        /s/
                                                  Duarte, J.



We concur:



     /s/
Mauro, Acting P. J.



     /s/
Murray, J.




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