Opinion
B305861
09-21-2020
THE PEOPLE, Plaintiff and Respondent, v. FROYLAN CARBAJAL, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA042458) APPEAL from an order of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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On March 10, 2009, defendant, Froylan Carbajal, then 18 years old, pleaded no contest to two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664). As to count 1, he also admitted as true allegations under section 12022.53, subdivision (c) that he discharged a firearm, and as to count two, allegations under section 12022.53, subdivision (b) that he personally used a firearm. The trial court imposed a state prison sentence of nine years on count 1, and 20 years for the firearm enhancement pursuant to section 12022.53, subdivision (c). The court sentenced defendant consecutively on count 2 to two years four months in state prison, plus three years four months for the firearm enhancement pursuant to section 12022.53, subdivision (b).
Undesignated statutory citations are to the Penal Code.
On January 13, 2020, defendant filed a motion to strike the firearm enhancements pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620). Senate Bill No. 620 amended section 12022.53 to "grant trial courts, for the first time, the discretion to strike section 12022.53's firearm enhancements. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)." (People v. Hurlic (2018) 25 Cal.App.5th 50, 54 [holding a certificate of probable cause not required to seek relief under Senate Bill No. 620] (Hurlic).) The trial court denied the motion on March 3, 2020. Defendant timely appealed from the trial court's March 3, 2020 order.
The March 3, 2020 minute order styled defendant's motion as a "motion for reconsideration pursuant to Penal Code section 12022.53(h)." As noted in the text, section 12022.53, subdivision (h) allows a court "in the interest of justice" to strike an enhancement "otherwise required to be imposed by this section."
On July 28, 2020, appellate counsel filed a brief asking us to follow the procedures in People v. Serrano (2012) 211 Cal.App.4th 496 and identified no issues. Counsel stated he would inform defendant that defendant could file a supplemental brief and/or request the court to relieve counsel. On July 28, 2020, we notified defendant that he had 30 days within which to file a supplemental brief or letter stating any grounds for an appeal or arguments that he wished us to consider. Defendant filed a letter brief on August 31, 2020.
The order before us involves a denial of postconviction relief. We thus have no independent duty to review the record for reasonably arguable issues. (People v. Cole (2020) 52 Cal.App.5th 1023, 1034 ["[W]e reject the notion that the Constitution compels the adoption or extension of [People v. Wende (1979) 25 Cal.3d 436] procedures (or any subset of them) for appeals other than a criminal defendant's first appeal of right because, beyond that appeal, there is no right to the effective assistance of counsel."].) If a defendant files a supplemental brief, we are "required to evaluate any arguments presented in that brief and to issue a written opinion that disposes of the trial court's order on the merits (that is, by affirming, reversing or other like disposition)." (People v. Cole, at p. 1040.)
Defendant contends his trial counsel has been unresponsive and encloses e-mail correspondence between his wife and appellate counsel inquiring as to the merits of certain arguments, including whether defendant is entitled to recall of his sentence under section 1170, subdivision (d), and theories attacking defendant's convictions. The body of defendant's supplemental letter brief asks us to review the record for: judicial bias; an "unfair, disproportion, and unequitable juvenile offender conviction" apparently asserting he should have been convicted of a lesser crime than attempted murder; cruel and unusual punishment of a juvenile offender "racial and social-economic demographics"; negligence by, and the bias of the judge, district attorney and law enforcement; discrepancies in witness testimony; and evidence of tampering with evidence by law enforcement and prosecutorial misconduct.
The trial court order before us concerns only the issue of whether the trial court abused its discretion under Senate Bill No. 620 in denying defendant's motion to strike defendant's firearm enhancements. The trial court denied that motion because defendant's convictions were final before Senate Bill No. 620's effective date. We agree.
We observe that the trial court erred in stating that January 1, 2019 was the effective date of Senate Bill No. 620. (Hurlic, supra, 25 Cal.App.5th at p. 54 [noting the statute was effective on January 1, 2018].)
On October 11, 2017, the Governor signed Senate Bill No. 620, which went into effect on January 1, 2018, and gave the trial courts authority to strike firearm enhancements—authority trial courts did not have previously. We have held that Senate Bill No. 620 applies retroactively to cases not yet final as of the date of its enactment. (Hurlic, supra, 25 Cal.App.5th at p. 56.) Defendant was convicted and sentenced pursuant to his plea in 2009 with no appeal, and thus his case became final well before Senate Bill No. 620's effective date.
See People v. Camba (1996) 50 Cal.App.4th 857, 865-866 [operative date is "January 1 of the year following" enactment].
DISPOSITION
The trial court's order dated March 3, 2020 denying defendant's motion to strike his firearm enhancements is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.