People v. Combs CA2/2 ( 2021 )

Filed 1/29/21 P. v. Combs 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B306336
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA098220)
v.
KIJOHN LARENZ COMBS,
Defendant and Appellant.
THE COURT:
In 2016, defendant Kijohn Larenz Combs was convicted,
pursuant to a plea of no contest, of second degree robbery. (Pen.
Code, § 212.5, subd. (c).)1 He admitted to the personal use of a
firearm. (§ 12022.53, subd. (b).) The trial court sentenced
defendant to 12 years in state prison, comprised of two years for
the robbery and 10 years for the firearm enhancement.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
In May 2020, defendant filed a postjudgment motion to
modify his sentence by striking the firearm enhancement. He
argued that, when his plea was entered in 2016, he did not know
that future laws—specifically Senate Bill No. 620 (2017-2018
Reg. Sess.) (SB 620)2 and Assembly Bill No. 1618 (2019-2020 Reg.
Sess.) (AB 1618)3—would be enacted that could lessen his
punishment.
The trial court summarily denied defendant’s motion on the
ground that SB 620 does not apply to criminal cases, like
defendant’s, that were already final on the law’s January 1, 2018,
effective date. Defendant appealed.
Counsel was appointed to represent defendant in
connection with this appeal. After reviewing the record, counsel
filed a brief raising no issues and asking this court to follow the
procedures set forth in People v. Serrano (2012) 211 Cal.App.4th
496. On October 19, 2020, Defendant filed a supplemental brief.
An order made after judgment is appealable only if it
affects a defendant’s substantial rights. (§ 1237, subd. (b).) If a
trial court lacks jurisdiction to grant the relief requested by a
2 SB 620, effective January 1, 2018, amended “sections
12022.5 and 12022.53, which set forth firearm enhancements, so
that the [trial] court may now, in its discretion, strike the
enhancements in the interests of justice.” (People v. Phung
(2018) 25 Cal.App.5th 741, 762–763.)
3 AB 1618, effective January 1, 2020, added section 1016.8.
That section provides, in part: “A provision of a plea bargain that
requires a defendant to generally waive future benefits of
legislative enactments, initiatives, appellate decisions, or other
changes in the law that may retroactively apply after the date of
the plea is void as against public policy.” (§ 1016.8, subd. (b).)
2
defendant, then an order denying the request does not affect the
defendant’s substantial rights within the meaning of
section 1237, subdivision (b). (People v. Hernandez (2019)
34 Cal.App.5th 323, 326 (Hernandez).)
SB 620 and section 1016.8 apply retroactively only to
nonfinal judgments. (Hernandez, supra, 34 Cal.App.5th at p. 326
[SB 620]; People v. Barton (2020) 52 Cal.App.5th 1145, 1159
[section 1016.8].) Because defendant’s sentence was final before
SB 620 and section 1016.8 were enacted, the trial court lacked
jurisdiction to grant his motion to modify his sentence under
those laws. (See People v. Fuimaono (2019) 32 Cal.App.5th 132,
135.) Thus, the denial of the motion did not affect defendant’s
substantial rights. (Ibid.) As a result, the trial court’s order is
not appealable, and the appeal must be dismissed. (Ibid.)
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
3