Filed 10/1/20 P. v. Marzett 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B305960
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA021057)
v.
ANTHONY MARZETT,
Defendant and Appellant.
THE COURT:
In December 1994, a jury convicted Anthony Marzett
(defendant) of (1) forcible oral copulation (Pen. Code § 288a, subd.
1
(d)), and (2) assault with intent to commit rape (§ 220). The jury
also found that he personally used a firearm to commit each
crime. (§§ 12022.3, subd. (a), 12202.5, subd. (a).) In January
1 All future statutory references are to the Penal Code unless
otherwise stated.
1995, the trial court sentenced defendant to prison for 35 years to
life. This was a “third strike” sentence under our state’s Three
Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)).
Defendant’s two prior “strike” convictions were a 1985 conviction
of residential burglary (§ 459) and a 1990 conviction of robbery
(§ 211). Defendant’s conviction became final in January 1997.
In February 2020, defendant moved the trial court to be
resentenced in this case because (1) he had entered pleas to the
1985 and 1990 convictions used as “strikes” in this case, (2) those
pleas were “void” under the newly enacted section 1016.8 because
the Three Strikes Law took effect in 1994, which was after both
pleas, and thus constituted a “change in law” from which he
should be immune. The trial court summarily denied the motion
on the grounds that section 1016.8 “does not apply retroactively
to final cases,” and that defendant’s case had been final for 23
years.
Defendant filed a timely notice of appeal. We appointed
appellate counsel for defendant. Citing People v. Serrano (2012)
211 Cal.App.4th 496, counsel filed an opening brief setting out
the procedural history and relevant facts of this case, and a
declaration indicating that counsel had “reviewed the entire
record,” had found no “arguable issues to raise on appeal” and
had informed defendant “of his right to file a supplemental brief.”
We sent a letter to defendant advising him that he had 30
days to file a supplemental brief. On August 19, 2020, defendant
filed a supplemental brief arguing that section 1016.8 renders his
pleas “void” (and, relatedly, that enforcing his pleas impairs the
obligations of contracts).
Pursuant to People v. Cole (2020) 52 Cal.App.5th 1023, our
obligation in reviewing this appeal of an order denying post-
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conviction relief is to “evaluate [the] arguments presented” in the
defendant’s supplemental brief. (Id. at p. 1040.)
At bottom, defendant in his supplemental brief argues that
the trial court that sentenced him in 1995 erred in treating his
1985 and 1990 convictions as “strikes” under the Three Strikes
Law enacted in 1994. This argument has been rejected time and
again. (E.g., People v. Sipe (1995) 36 Cal.App.4th 468, 478-479
(Sipe); People v. Murillo (1995) 39 Cal.App.4th 1298, 1307-1308
[collecting cases that have unanimously so held].) Neither
section 1016.8 nor the impairment of contracts doctrine call this
well-settled law into question. By its terms, section 1016.8
prohibits the state from requiring a defendant, as a condition of a
plea bargain, to “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 . . .” (§ 1016.8,
subd. (b).) But the trial court imposing sentence in 1995 did not
transgress this requirement because the Three Strikes Law is not
a “future benefit” to defendants, and because the trial court’s act
of sentencing defendant under the Three Strikes Law in 1995
applied the law in effect at that time and thus did not
retroactively apply any law (Sipe, at pp. 478-479).
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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LUI, P.J., CHAVEZ, J., HOFFSTADT, J.
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