People v. Flynn CA2/4 ( 2021 )

Filed 1/21/21 P. v. Flynn CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305706
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA365181
v.
TYRONE CURTIS FLYNN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David R. Fields, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2011, defendant and appellant Tyrone Flynn pled no
contest to attempted murder (Pen. Code,1 §§ 664/187, subd. (a))
and admitted he inflicted great bodily injury in the commission of
the offense (§ 12022.7, subd. (a)). He also admitted he sustained a
prior serious felony conviction (§ 667, subd. (a)(1)) and a prior
strike conviction (§§ 667.5, subd. (b), 1170.12). The trial court
sentenced him to 18 years in state prison, consisting of a low
term of five years, doubled to ten years for the prior strike, plus a
five-year prior serious felony enhancement and a three-year great
bodily injury enhancement.
In 2019, Flynn filed a motion to recall his sentence under
section 1170, subdivision (d)(1).2 In his motion, he asked the court
1 All undesignated statutory references are to the Penal
Code.
2 Section 1170, subdivision (d)(1) provides: “When a
defendant subject to this section or subdivision (b) of Section 1168
has been sentenced to be imprisoned in the state prison or a
county jail pursuant to subdivision (h) and has been committed to
the custody of the secretary or the county correctional
administrator, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the
recommendation of the secretary or the Board of Parole Hearings
in the case of state prison inmates, the county correctional
administrator in the case of county jail inmates, or the district
attorney of the county in which the defendant was sentenced,
recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not
previously been sentenced, provided the new sentence, if any, is
no greater than the initial sentence. The court resentencing
under this subdivision shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to
promote uniformity of sentencing. The court resentencing under
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to utilize newly-enacted sentencing laws to strike his five-year
prior serious felony enhancement. The court summarily denied
the motion.
Flynn filed a timely notice of appeal, and we appointed
counsel to represent him. On July 21, 2020, appellate counsel
filed a brief raising no issues and requesting that this court
follow the procedures set forth in People v. Serrano (2012) 211
Cal.App.4th 496. We informed Flynn that he could personally
submit any contentions or issues for us to consider, and he filed a
supplemental brief on July 10, 2020.
In his supplemental brief, Flynn argues he was denied due
process and effective assistance of counsel when his attorney filed
a brief in this court raising no issues. We reject these contentions.
Effective January 1, 2019, Senate Bill No. 1393 amended
Penal Code sections 667 and 1385 to give trial courts the
discretion to dismiss, in the interest of justice, five-year prior
serious felony enhancements under section 667, subdivision
(a)(1). (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)
Prior to this change in the law, courts were required to impose
this paragraph may reduce a defendant’s term of imprisonment
and modify the judgment, including a judgment entered after a
plea agreement, if it is in the interest of justice. The court may
consider postconviction factors, including, but not limited to, the
inmate’s disciplinary record and record of rehabilitation while
incarcerated, evidence that reflects whether age, time served, and
diminished physical condition, if any, have reduced the inmate’s
risk for future violence, and evidence that reflects that
circumstances have changed since the inmate’s original
sentencing so that the inmate’s continued incarceration is no
longer in the interest of justice. Credit shall be given for time
served.”
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five-year prior serious felony enhancements. Although Senate
Bill 1393 would have applied retroactively to Flynn if his direct
appeal had not yet been final when the new law took effect (see
Garcia, supra, 28 Cal.App.5th at p. 973), Flynn has not satisfied
his burden of showing his judgment was not final when the new
law took effect. The trial court accepted Flynn’s guilty plea in
2011. Our records do not indicate Flynn ever appealed from that
judgment. The judgment became final after 60 days passed from
the rendition of judgment without Flynn filing a notice of appeal.
(See Cal. Rules of Court, rule 8.308(a).) Because Flynn’s
judgment became final in 2011, Senate Bill 1393, which went into
effect January 1, 2019, does not apply retroactively to him. The
trial court was therefore correct in denying his motion, and he
was not denied effective assistance of counsel or due process
when his attorney filed a brief raising no issues.
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DISPOSITION
The order denying Flynn’s motion to recall his sentence is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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