Filed 9/22/20 P. v. Ruiz CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).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 THREE
THE PEOPLE, B305375
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA088475
v.
ISMAEL RUIZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendant Ismael Ruiz appeals from the postjudgment
order denying his motion for modification of sentence. Our
independent review of the record has revealed no arguable
appellate issues, and we affirm.
BACKGROUND
On October 5, 2017, defendant pled no contest to attempted
first-degree residential robbery (Pen. Code,1 §§ 664/211) and
vandalism (§ 594, subd. (a)). He also admitted using a firearm
during the commission of the attempted robbery. (§ 12022.5,
subd. (a).) The trial court sentenced defendant to a total of seven
years in state prison. The court imposed the upper term of three
years for the attempted robbery, plus an additional four years for
the firearm enhancement to run consecutively. As for the
vandalism, the court imposed three years in county jail to run
concurrently.
On February 20, 2020, defendant filed a motion for
modification of sentence requesting that the five-year serious
felony enhancement be vacated under Senate Bill Nos. 1393 and
1618.2 The court denied the motion on February 21, 2020. It
explained that defendant was not eligible for relief under Senate
Bill No. 1393 because his “plea and sentence did not include any
enhancement pursuant to Penal Code § 667(a).”
1 All undesignated statutory references are to the Penal Code.
2 It appears that defendant meant to refer to Assembly Bill No. 1618.
That bill added section 1016.8, which renders void any plea bargain
provision that purports to waive the benefits of future changes in the
law. (§ 1016.8, subds. (a), (b).)
2
Defendant filed a timely notice of appeal from the order,
and we appointed counsel to represent him. On July 21, 2020,
appointed counsel filed a brief in which he raised no issues and
asked us to follow the procedures set forth in People v. Serrano
(2012) 211 Cal.App.4th 496. We notified defendant that his
attorney had filed a brief that raised no issues and that he could
submit by brief or letter any grounds for an appeal, or
contentions or arguments he wished this court to consider. We
have not received a response.
DISCUSSION
Effective January 1, 2019, sections 667 and 1385 were
amended by Senate Bill No. 1393 to remove the prohibitions on
striking or dismissing a five-year prior serious felony
enhancement. (See Stats. 2018, ch. 1013, §§ 1–2.) The amended
statutes apply retroactively to all cases that are not yet final.
(People v. Stamps (2020) 9 Cal.5th 685; see also People v. Garcia
(2018) 28 Cal.App.5th 961, 971–973.) Here, however, the court
did not impose a prior serious felony enhancement under section
667. In any event, defendant’s judgment became final before the
enactment of Senate Bill No. 1393.
To be sure, counsel notes that defendant likely meant to
ask the court to strike the section 12022.5 firearm enhancement
under Senate Bill No. 620. This bill went into effect on January 1,
2018, and amended sections 12022.5 and 12022.53 to allow the
trial court to strike firearm enhancements in the interest of
justice. (People v. Hargis (2019) 33 Cal.App.5th 199, 209.) But
defendant’s judgment, which he did not appeal, became final
several weeks before Senate Bill No. 620 went into effect. (See
People v. Barboza (2018) 21 Cal.App.5th 1315, 1319 [defendant’s
judgment became final upon expiration of 60-day deadline to
3
appeal from trial court’s imposition of sentence].) Accordingly,
Senate Bill No. 620 does not apply retroactively to defendant’s
case.
We have examined the entire record, and are satisfied
appellate counsel has fully complied with his responsibilities and
no arguable issues exist in the appeal before us.
4
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
DHANIDINA, J.
5