People v. Floyd CA2/7 ( 2021 )

Filed 1/7/21 P. v. Floyd CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B304531
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA353908)
v.
ANDREW FLOYD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Dismissed.
Jill Ishida, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________
Andrew Floyd appeals from the superior court’s denial of
his motion for modification of sentence pursuant to Senate Bill
No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) or Penal Code1
section 1170, subdivision (d). Because Floyd is appealing from a
nonappealable order, we dismiss the appeal.
PROCEDURAL BACKGROUND
In 2009 a jury convicted Floyd of second degree robbery
(§ 211). In a bifurcated proceeding the trial court found true
Floyd suffered a prior conviction of a serious or violent felony
under the three strikes law (§§ 667, subds. (b)-(i), 1170.12), which
was a serious felony within the meaning of section 667,
subdivision (a)(1), and two prior convictions for which he served
prison terms (§ 667.5, subd. (b)). On February 24, 2010 the trial
court sentenced Floyd to an aggregate state prison term of 15
years comprised of the upper term of five years for second degree
robbery, doubled as a second strike, plus five years for his prior
serious felony conviction. The court struck the prior prison term
enhancements. This court affirmed Floyd’s robbery conviction on
appeal. (People v. Floyd (Aug. 9, 2011, B222974) [nonpub. opn].
(Floyd I).)
On November 18, 2019 Floyd filed a motion for modification
of sentence in which he requested the trial court recall his
sentence and dismiss the five-year enhancement, citing to Senate
Bill 1393. Floyd attached to his motion certificates of completion
for various programs and classes he completed while
incarcerated. The superior court applauded Floyd’s efforts to
1 All further statutory references are to the Penal Code.
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rehabilitate himself, but it denied his petition, finding “no good
cause for the modification of his sentence.” Floyd timely
appealed.
DISCUSSION
We appointed counsel to represent Floyd on appeal. After
examination of the record, counsel filed an opening brief in which
no issues were raised. Appellate counsel advised Floyd he could
submit a supplemental brief raising any contentions or issues he
wished us to consider. On July 27, 2020 we received a three-page
handwritten response in which Floyd requested early release,
stating, “I . . . believe that I have paid for the consequences of my
criminal actions and that I have become a better person as a
result of my years behind bars.” (See Smith v. Robbins (2000)
528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-
119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
In 2018 the Governor signed into law Senate Bill 1393
(2017-2018 Reg. Sess.), which went into effect on January 1,
2019. Senate Bill 1393 amended section 1385 by deleting
subdivision (b), which prohibited trial courts from exercising
discretion “to strike any prior conviction of a serious felony for
purposes of enhancement of a sentence under [s]ection 667.”
(§ 1385, former subd. (b).) Senate Bill 1393 applies retroactively
to defendants whose sentences were not final at the time the new
law became effective on January 1, 2019. (People v. Stamps
(2020) 9 Cal.5th 685, 699; People v. Jones (2019) 32 Cal.App.5th
267, 272; see In re Estrada (1965) 63 Cal.2d 740, 744 [Absent
contrary legislative intent, “[i]f the amendatory statute lessening
punishment becomes effective prior to the date the judgment of
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conviction becomes final then, in our opinion, it, and not the old
statute in effect when the prohibited act was committed,
applies.”].)
Because Floyd’s sentence became final following our
affirmance of his conviction in Floyd I, Senate Bill 1393 does not
apply retroactively to provide relief for Floyd. Floyd has not cited
to any other basis to recall his sentence. Generally, a trial court
has no jurisdiction to resentence a defendant after execution of
the sentence has commenced. (People v. Karaman (1992)
4 Cal.4th 335, 344; People v. Torres (2020) 44 Cal.App.5th 1081,
1084 (Torres).) However, the trial court may recall the sentence
and resentence a defendant within 120 days of his or her
commitment into custody or upon a recommendation of the
secretary of the California Department of Corrections and
Rehabilitation, the Board of Parole Hearings, or the district
attorney. (§ 1170, subd. (d)(1); see Dix v. Superior Court (1991)
53 Cal.3d 442, 455 [“Section 1170(d) is an exception to the
common law rule that the court loses resentencing jurisdiction
once execution of sentence has begun.”].) In addition,
“[u]nauthorized sentences and ‘“‘obvious legal errors at
sentencing that are correctable without referring to factual
findings in the record or remanding for further findings’”’ are
correctable at any time.” (Torres, at p. 1085.)
Floyd filed his motion for modification of sentence more
than 120 days after execution of his sentence commenced, and he
does not fall within any of the exceptions that may be corrected
after the 120-day period. (Torres, supra, 44 Cal.App.5th at
p. 1085.) If the trial court does not have jurisdiction to rule on a
motion to vacate or modify a sentence, an order denying the
motion is nonappealable, and any appeal from the order must be
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dismissed. (Id. at p. 1084; People v. Turrin (2009)
176 Cal.App.4th 1200, 1208; see People v. Fuimaono (2019)
32 Cal.App.5th 132, 135.)
DISPOSITION
The appeal is dismissed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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