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March 10, 2026 Get Citation Alerts Download PDF Add Note

People v. Burgos CA2/2

California Court of Appeal

• Citations: None known
• Docket Number: B346620

• Precedential Status: Non-Precedential

• Opinion

• Authorities (2)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

Filed 3/10/26 P. v. Burgos CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B346620

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA090456)
v.

DANIEL A. BURGOS,

Defendant and Appellant.

THE COURT:

Defendant and appellant Daniel A. Burgos (defendant)
appeals from a postconviction order denying his request for
resentencing pursuant to Penal Code1 section 1172.1.
Defendant’s appointed counsel identified no arguable issues and
filed a brief requesting we exercise our discretion to conduct an

1 All further undesignated statutory references are to the
Penal Code.
independent review of the record as set forth in People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Defendant filed a
supplemental brief. We conclude the order at issue is not an
appealable order and dismiss the appeal.

BACKGROUND
In 2018, defendant was charged with one count of willful,
deliberate, and premeditated attempted murder (§§ 664/187;
count 1) and one count of being a felon in possession of a firearm
(§ 29800, subd. (a)(1); count 2). As to count 1, the People alleged
defendant used a firearm during the commission of the offense
within the meaning of section 12022.53, subdivisions (b), (c), (d),
and (e)(1). As to counts 1 and 2, the People alleged defendant
committed the offense for the benefit of a criminal street gang
within the meaning of section 186.22, subdivision (b)(1)(C).
Finally, the People alleged defendant suffered a prior serious
felony conviction within the meaning of section 667, subdivision
(a)(1) and a prior strike conviction pursuant to the “Three
Strikes” law (§§ 667, subds. (b)–(j), 1170.12).
In 2021, defendant accepted a negotiated disposition
wherein he pleaded no contest to count 1 and admitted a firearm
allegation pursuant to section 12022.5, subdivision (a) and a
great bodily injury allegation pursuant to section 12022.7,
subdivision (a).2 He also admitted he suffered a prior strike
conviction. Defendant was sentenced to an aggregate term of 22
years comprised of nine years in count 1, doubled to 18 years as a

2 The information was amended to add the firearm
enhancement pursuant to section 12022.5, subdivision (a) and the
great bodily injury enhancement pursuant to section 12022.7,
subdivision (a).

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second strike, plus four years for the firearm enhancement. A
three-year sentence for the great bodily injury enhancement was
stayed.
On February 18, 2025, defendant filed a request for recall
of sentence pursuant to section 1172.1 On April 4, 2025, the
court issued an order summarily denying defendant’s request for
recall of his sentence. Citing section 1172.1, subdivision (c), the
court noted “that a defendant is ‘not entitled to file a petition’
seeking resentencing” and where a defendant makes such a
request “the court is not required to respond.” Thus, the court
found defendant’s “Motion [wa]s not authorized and [wa]s subject
to summary denial.”
Defendant filed a timely notice of appeal.

DISCUSSION
Where, as here, appointed counsel finds no arguable issues
in an appeal that is not from the first appeal after conviction, we
are not required to conduct an independent review of the record.
(See Delgadillo, supra, 14 Cal.5th at p. 226.) However, even if we
do not independently review the record to identify unraised
issues in a case, we give the defendant the opportunity to file his
or her own supplemental brief or letter and we then evaluate any
specific arguments raised. (See id. at p. 232.)
Counsel provided defendant with a copy of the record on
appeal and informed him of his right to file his own supplemental
brief. We notified defendant of counsel’s brief and gave
defendant 30 days to file his own letter or brief stating any
grounds for an appeal, contentions, or arguments he wished to be
considered, and if he did not the appeal would be dismissed.

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Defendant filed a supplemental brief within the time
allowed, arguing that the great bodily injury enhancement
imposed and stayed was improper because such an enhancement
“shall not apply if infliction of great bodily injury is an element of
the offense.” Defendant also alleged ineffective assistance of
counsel because his court-appointed attorney told him he did not
believe he had “a case” and defendant asks this court to review
his case. We conclude that the order issued by the trial court is
not appealable, and thus the appeal must be dismissed.
“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 in the same manner as if they had not
previously been sentenced, whether or not the defendant is still
in custody, and provided the new sentence, if any, is no greater
than the initial sentence.”
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. 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; People v. Hodge, supra, at p. 996.) As
Hodge explained: “That sentence excuses the trial court from any
responsibility to rule on such a request, or even to respond. It
follows that a defendant who chooses to file an unauthorized
request for resentencing has no right to a ruling. The defendants
may have a liberty interest at stake in any decision as to whether
they should remain incarcerated. But a defendant has no right to
demand that the trial court actually make such a decision. If the
defendant has no right to a decision, the trial court’s choice not to
make one does not deprive the defendant of any right, much less
a substantial one.” (Hodge, at p. 996; see Roy, at p. 998.)
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 Court 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

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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.)
Because defendant had no right to a response by the trial
court, an order summarily denying his request under section
1172.1 cannot be said to affect his substantial rights.
Accordingly, the trial court’s order was not appealable under
section 1237, subdivision (b), and the appeal must be dismissed.

DISPOSITION
The appeal is dismissed.

CHAVEZ, Acting P. J. RICHARDSON, J. GILBERT, J.*

• Retired Presiding Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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