Filed 2/1/21 P. v. Anderson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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This opinion has not been certified for publication or ordered published for purposes of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 ONE
THE PEOPLE, B306686
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA271932)
v.
SAMUEL ANDERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Renee F. Korn, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal,
and Samuel Anderson, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
Samuel Anderson appeals from an order denying a motion
filed in the trial court seeking a modification of his judgment
and his release from prison without parole. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 2005, a jury found Samuel Anderson guilty of assault
with a deadly weapon (a knife). (Pen. Code,1 § 245, subd. (a)(1).)
The court found two prior strike allegations to be true and
sentenced Anderson under the “Three Strikes” law to prison
for 25 years to life. In 2006, this court affirmed the judgment
in an unpublished opinion. (People v. Anderson (Apr. 19, 2006,
B183767).)
On May 8, 2020, Anderson filed a motion in the superior
court titled, “California Penal Code 1260 Reversal, Affirmance
or Modification of Judgment.” Anderson requested the court
to modify his judgment “and release [him] without any parole.”
In support of his motion he relied on the Public Safety and
Rehabilitation Act of 2016 (Proposition 57) and section 1016.8.
The court denied the motion, explaining that
Proposition 57 “only provides an inmate who has completed his
base term with a hearing before the Board of Parole Hearings
(Cal. Const., [art. I, § 32, subd. (a)]). There is no resentencing
option in the [s]uperior [c]ourt. The documents provided
by the [d]efendant indicate that the Office of Appeal for the
Department of Corrections has reviewed the [d]efendant’s file
with him at length. This court declines to take any action at
this time.”
Anderson filed a timely notice of appeal.
1Subsequent unspecified statutory references are to the
Penal Code.
2
We appointed counsel for Anderson, who filed a brief
raising no issues and requesting that we follow the procedures
set forth in People v. Serrano (2012) 211 Cal.App.4th 496
(Serrano). Counsel provided Anderson with a copy of the
record and his brief, and informed Anderson that he had
the right to file a supplemental brief. Counsel stated that
he remains available to brief any issues upon our request.
Anderson thereafter filed a petition for writ of habeas
corpus in this court, which we deemed a supplemental brief for
purposes of Serrano and People v. Cole (2020) 52 Cal.App.5th
1023, 1038 (Cole), review granted October 14, 2020, S264278.
Anderson repeats the arguments he asserted below and adds
the contention that his counsel on appeal rendered ineffective
assistance by filing a brief pursuant to Serrano. He requests
that he “be released from the custody of the Department of
Corrections and Rehabilitation, ‘immediately,’ without any
further delay.”
DISCUSSION
Anderson contends that he should be released from prison
without parole pursuant to Proposition 57. Proposition 57
added section 32 to article I of the California Constitution, and
provides in part: “Any person convicted of a nonviolent felony
offense and sentenced to state prison shall be eligible for parole
consideration after completing the full term for his or her
primary offense.” (Cal. Const., art. I, § 32, subd. (a), par. (1).)
For such persons sentenced under the Three Strikes law, “the
full term for his [or her] primary offense” is the maximum term
the person would have been sentenced for the primary offense
if “the Three Strikes law alternative sentencing scheme had not
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existed at the time of [the defendant’s] sentencing.” (In re
Edwards (2018) 26 Cal.App.5th 1181, 1192.)
Even if Anderson qualifies for relief under Proposition 57,
the available relief is eligibility for parole consideration; nothing
in Proposition 57 or the cases Anderson cites supports his
requested relief of immediate release from prison. Furthermore,
as the superior court explained, Proposition 57 does not provide
for resentencing or modification of his judgment in the superior
court. The court, therefore, properly denied Anderson’s request
for relief based on Proposition 57.
Anderson next asserts that the 1977 and 1979 convictions
the trial court relied on in sentencing him in 2005 under the
Three Strikes law were based on plea bargains and that, by
using those convictions to impose a Three Strike sentence, the
state has breached the agreements. He relies on section 1016.8.
The Legislature enacted section 1016.8 in 2019 in
response to a report that a particular district attorney’s office
was including a provision in plea agreements whereby the
defendant agreed to waive “ ‘all future potential benefits of any
legislative actions or judicial decisions or other changes in the
law that may occur after the date of this plea,’ ” and a statement
in a 2019 Court of Appeal decision indicating that such a waiver
would be enforceable. (People v. Barton (2020) 52 Cal.App.5th
1145, 1153, citing Sen. Com. on Public Safety, Analysis of
Assem. Bill No. 1618 (2019–2020 Reg. Sess.) July 1, 2019,
pp. 6-7.) By enacting section 1016.8, the Legislature “intended
to ‘make such provisions in a plea bargain void as against public
policy.’ ” (People v. Barton, supra, at p. 1153.)
Anderson did not provide the superior court or this court
with the terms of his plea agreements. Even if they included
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the type of waiver that section 1016.8 declares void, the statute
would not help him because he is not seeking to obtain the
benefit of changes in any law that postdate his plea bargains.
Rather, he is seeking to avoid the adverse effect of the Three
Strikes law as applied to his 2005 convictions. Section 1016.8
has no application here.
Lastly, Anderson contends that by filing a brief pursuant
to Serrano his appellate counsel deprived him of his right to the
effective assistance of counsel. We disagree. Our review of the
record and consideration of Anderson’s supplemental brief does
not disclose any arguable issues on appeal. Anderson has not,
therefore, been deprived of his right to the effective assistance
of appellate counsel. (See Smith v. Robbins (2000) 528 U.S.
259, 285–286 [appellate counsel is not deficient for failing to
find arguable issues on appeal when defendant fails to establish
the existence of an arguable issue].)
We are satisfied that Anderson’s counsel has fulfilled his
responsibilities (see People v. Cole, supra, 52 Cal.App.5th at
p. 1038, review granted Oct. 14, 2020, S264278) and conclude
that the appeal raises no arguable issues.
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DISPOSITION
The court’s order dated May 8, 2020 is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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