People v. Lyons CA1/4 ( 2021 )

Filed 3/19/21 P. v. Lyons CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A160982
v. (Alameda County Super. Ct.
OMA LYONS, No. 173660A / HC173660A1)
Defendant and Appellant.
MEMORANDUM OPINION1
In this appeal from a postjudgment order pursuant to People v. Serrano
(2012) 211 Cal.App.4th 496, Oma Lyons, who is currently serving a 16-year
sentence for a voluntary manslaughter conviction (Pen. Code, § 192,
subd. (a)) with a firearm use enhancement (Pen. Code, § 12022.5, subd. (a)),
filed a pro se petition for recall of his sentence and for resentencing. Citing
Penal Code section 1170.1, subdivision (a), as authority for the motion, Lyons
requested that the court exercise discretion conferred by a 2018 amendment
to Penal Code section 1385 allowing it to strike the firearm use enhancement.
(See Sen. Bill No. 620 (2017–2018 Reg. Sess.) § 1 (Senate Bill 620).)
We resolve this case by memorandum opinion because it raises no
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substantial issue of fact or law. (Cal. Stds. Jud. Admin., § 8.1.)
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The effective date of Senate Bill 620 was January 1, 2018. (People v.
Harris (2018) 22 Cal.App.5th 657, 659.) Lyons was sentenced on January 31,
2018, pursuant to an agreed disposition. His 16-year term of imprisonment
has two components, a base term consisting of the middle term of six years
for the manslaughter conviction, and a consecutive ten years for the firearm
enhancement. The sentencing judge, Hon. James Cramer, was vested with
discretion to strike the firearms enhancement at the time of sentencing, but
declined to exercise it, imposing a determinate term in accord with the plea
bargain.
Lyons sought recall of his sentence and resentencing on July 14, 2020,
after receiving a copy of a letter dated May 22, 2020, that Cathy Heifner, a
case analyst at the California Department of Corrections (CDC), sent to
Judge Cramer. In her letter, Heifner requested clarification of a discrepancy
in the credits granted to Lyons as shown in the Amended Abstract of
Judgment, on the one hand, and a Corrected Minute Order, on the other.
Judge Morris Jacobson denied Lyons’s motion for recall of his sentence
and for resentencing in an order entered August 24, 2020. Judge Jacobson
noted that Lyons made no showing that his sentence was unlawful or
unauthorized. In the absence of such a showing, Judge Jacobson ruled, the
court was without jurisdiction to entertain Lyons’s petition because it was
unrelated to any proceeding then pending (People v. Picklesimer (2010)
48 Cal.4th 330, 337) and because more than 120 days had passed since the
imposition of sentence (Pen. Code, § 1170, subd. (d)(1)).
Judge Jacobson stated, in addition, that there was no reason to strike
the firearms enhancement, since Judge Cramer was vested with discretion to
strike the enhancement at the time sentence was imposed but chose to follow
the agreed terms of the negotiated disposition. He also noted that in 2019
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Lyons filed a petition for habeas corpus requesting that the firearms
enhancement be stricken as well as vacatur of a prior marijuana conviction
pursuant to Health and Safety Code section 11361.9 (added by Stats. 2018,
ch. 993, § 1, eff. Jan. 1, 2019).2 That habeas petition was denied, and Judge
Jacobson declined to revisit the issues raised there. He also explained that
the language of Penal Code section 1170.1, subdivision (a), which Lyons
purported to rely upon, does not actually state what Lyons claimed it says,
and in any event does not authorize the relief Lyons requested.
Having denied Lyons’s petition for recall of his sentence and for
resentencing, Judge Jacobson went on to provide the clarification requested
by the CDC and ordered that the Amended Abstract of Judgment and the
Corrected Minute Order be corrected in accordance with the clarification.
Lyons timely appealed Judge Jacobson’s order denying his motion for
recall and resentencing. His appointed counsel on appeal filed a brief
summarizing the pertinent facts and procedural history, reporting that there
are no arguable issues to pursue on appeal, declaring that Lyons has been
advised that he may file a supplemental submission should he wish to do so,
and requesting that we exercise our discretion to undertake an independent
2 “On or before July 1, 2019, the Department of Justice shall review the
records in the state summary criminal history information database and
shall identify past convictions that are potentially eligible for recall or
dismissal of sentence, dismissal and sealing, or redesignation pursuant to
Section 11361.8. The department shall notify the prosecution of all cases in
their jurisdiction that are eligible for recall or dismissal of sentence,
dismissal and sealing, or redesignation.” (Health & Saf. Code, § 11361.9,
subd. (a).) Because the marijuana conviction in question was imposed in San
Joaquin County, the March 7, 2019 order denying Lyons’s habeas petition
ruled that the Alameda County Superior Court was without jurisdiction to
grant relief.
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review of the record pursuant to People v. Serrano, supra, 211 Cal.App.4th
496.
Lyons filed a pro se supplemental brief on February 4, 2021, arguing
that we should treat this appeal as a petition for habeas corpus, that Judge
Cramer “could have relied on any number of aggravating circumstances in
imposing the upper term,” and that if he did so the judicial determination of
an aggravating circumstance violated his Sixth Amendment rights under
Cunningham v. California (2007) 549 U.S. 270. (See People v. Sandoval
(2007) 41 Cal.4th 825, 836.) Lyons also contends, without support in the
record, that Judge Cramer was unaware of the then very recent enactment of
Senate Bill 620 at the time of sentencing and failed to exercise the discretion
that legislation conferred upon him.
We see no merit in the arguments advanced in Lyons’s supplemental
brief. Under circumstances where Judge Cramer was presented with an
agreed lawful sentence to a specific term of years, it appears to us that he
accepted the parties’ agreement and had no occasion to exercise discretion in
choosing a term from the sentencing triad applicable to Lyons’s offense or to
engage in any fact-finding in support of such a choice. We must presume that
Judge Cramer knew the law––which of course included newly enacted Senate
Bill 620––and that he applied it when he approved the plea agreement.
Absent evidence in the record of conviction affirmatively showing that Judge
Cramer failed to appreciate that he had the discretion to strike the weapons
use enhancement and reject the parties’ agreement, we decline to find error.
We have undertaken the requested independent review of the record,
we see no error, and we conclude there are no issues that are worthy of full
briefing on appeal.
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DISPOSITION
The trial court’s postjudgment order filed August 24, 2020 is affirmed.
STREETER, Acting P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
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