Filed 11/18/21 P. v. Smith CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B308753
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA043527)
v.
TYRRELL SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Leslie E. Brown, Judge. Dismissed.
Rachel Lederman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and Charles J. Sarosy,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________
Eighteen years after being sentenced to 32 years in state
prison following a no contest plea to charges of mayhem, assault
with a deadly weapon, and corporal injury to a spouse, as well as
his admission of all allegations of prison priors and
enhancements, defendant Tyrrell Smith petitioned the trial court
to strike a five-year sentencing enhancement for great bodily
injury that was attached to the mayhem count and imposed
under Penal Code section 12022.7, subdivision (e).1 He also
requested a reduction of sentence pursuant to Senate Bill
No. 1393 (2017-2018 Reg. Sess.), effective January 1, 2019.2
The trial court denied Smith’s pro per petition to reduce his
sentence on the basis that Senate Bill No. 1393 does not apply
retroactively to final judgments, and Smith does not take issue
with that ruling. (See People v. Stamps (2020) 9 Cal.5th 685,
699.) However, the trial court did not expressly address Smith’s
request to strike the five-year great bodily injury enhancement,
which is raised as the only point of error on this appeal.
Smith contends his long-ago sentence is unauthorized, and
subject to our jurisdiction, because section 12022.7 expressly
precludes the imposition of the enhancement if great bodily
injury is also an element of the offense to which it is attached.
However, the version of the statute in effect at the time of
Smith’s conviction did not include this language. Further, even
under the current version of the statute, the enhancement is not
precluded if great bodily injury occurred under circumstances—
1 All unspecified statutory references are to the Penal Code.
2 Senate Bill No. 1393 allows a trial court to exercise its
discretion to strike or dismiss certain prior serious felony
enhancements.
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present here—involving domestic violence. Thus, the
enhancement was authorized.
Accordingly, the trial court did not have jurisdiction to
grant Smith’s post-judgment petition, and we dismiss his appeal.
BACKGROUND
In a January 18, 2002 information, Smith was charged with
mayhem (§ 203; count 1), assault with a deadly weapon likely to
cause great bodily injury (former § 245, subd. (a)(1); count 2), and
corporal injury to a spouse (§ 273.5, subd. (a); count 3). As to all
three counts, it was alleged that Smith inflicted great bodily
injury under domestic violence circumstances (§ 12022.7, subd.
(e)) and that he personally used a deadly and dangerous weapon
(§ 12022, subd. (b)(1)), a knife. It was further alleged that Smith
had two prior convictions that each qualified as a prior serious
felony (§ 667, subd. (a)(1)), as well as two prior prison term
convictions (§ 667.5).
On October 7, 2002, Smith agreed to an open plea after the
trial court indicated that it would strike one of his prior
convictions for sentencing purposes under People v. Superior
Court (Romero) (1996) 13 Cal.4th 497.3 Smith pleaded no contest
to each count and admitted all of the allegations. The trial court
sentenced him to 32 years in state prison, which included five
3 Under Romero, “a trial court may strike or vacate an
allegation or finding under the Three Strikes law [(§§ 667, subds.
(b)-(i), 1170.12)] that a defendant has previously been convicted
of a serious and/or violent felony, on its own motion, ‘in
furtherance of justice’ pursuant to . . . section 1385[, subdivision]
(a).” (People v. Williams (1998) 17 Cal.4th 148, 158.)
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years for the great bodily injury enhancement attached to the
count for mayhem.
Smith did not file an appeal.
On August 14, 2020, Smith filed a petition to correct an
allegedly unauthorized sentence.4 Specifically, he argued that
the court should strike his great bodily injury enhancement
under section 12022.7, subdivision (e), because it was an element
of mayhem and thus should never have been imposed. He also
requested the trial court exercise its discretion under Senate Bill
No. 1393 to strike his two prior serious felony enhancements.
On August 31, 2020, the trial court denied Smith’s petition
on the basis that Senate Bill No. 1393 does not apply
retroactively to final judgments. The minute order did not
address Smith’s argument that the great bodily injury
enhancement was unauthorized because great bodily injury is
also an element of mayhem.
Smith timely appealed.
DISCUSSION
“ ‘ “[A] judgment or order is not appealable unless expressly
made so by statute.” [Citations.]’ [Citation.]” (People v.
Hernandez (2019) 34 Cal.App.5th 323, 326.) Smith argues the
trial court’s order is appealable under section 1237, presumably
as a post-judgment order affecting a defendant’s substantial
4 Smith first filed a petition to correct his sentence on
July 14, 2020. However, the trial court declined to act because
the petition lacked a proof of service. In its written minute order,
the court observed that the petition “in its current form does not
state a legal basis upon which to disturb the previously-imposed
sentence in this case.”
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rights under subdivision (b). However, an order denying a
motion the court lacks jurisdiction to grant does not affect a
defendant’s substantial rights. (People v. Turrin (2009) 176
Cal.App.4th 1200, 1208.) An appeal from such an order must be
dismissed. (Ibid., citing People v. Chlad (1992) 6 Cal.App.4th
1719, 1727.)
“ ‘[G]enerally a trial court lacks jurisdiction to resentence a
criminal defendant after execution of sentence has begun.
[Citation.]’ [Citations.]” (People v. Turrin, supra, 176
Cal.App.4th at p. 1204.) Smith argues he falls within an
exception to this rule because his sentence was unauthorized.
(See id. at p. 1205 [“an unauthorized sentence may be corrected
at any time”].) This “ ‘is “a narrow exception” to the waiver
doctrine that normally applies where the sentence “could not
lawfully be imposed under any circumstance in the particular
case.” ’ ” (Ibid.)
Smith contends the sentence is unauthorized because
section 12022.7, subdivision (g) precludes the imposition of
enhancements under subdivisions (a), (b), (c), and (d) “if infliction
of great bodily injury is an element of the offense.” (§ 12022.7,
subd. (g).)
Smith’s argument fails for two reasons. First, the version
of section 12022.7, subdivision (g) in effect at the time of Smith’s
2002 conviction did not preclude imposition of the enhancement.
Instead, it required that “[t]he additional term provided in this
section shall not be imposed unless the fact of great bodily injury
is charged in the accusatory pleading and admitted or found to be
true by the trier of fact.” (See § 12022.7, former subd. (g) [version
effective Jan. 1, 2001 to Dec. 31, 2002].) These elements were
met at the time of Smith’s conviction. Second, section 12022.7,
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subdivision (g) does not preclude the imposition of the
enhancement under subdivision (e), which involves great bodily
injury in a domestic violence context and under which Smith
received the five-year sentencing enhancement. (See § 12022.7,
subds. (e), (g); People v. Hawkins (2003) 108 Cal.App.4th 527, 531
[“The [great bodily injury] enhancement may be applied,
however, if the crime is committed under circumstances involving
domestic violence”].)
Smith therefore fails to demonstrate that his sentence was
unauthorized.5 Accordingly, the trial court did not have
jurisdiction to rule on his post-judgment petition. We dismiss the
appeal. (People v. Turrin, supra, 176 Cal.App.4th at p. 1208.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
CHANEY, J. BENDIX, Acting P. J.
5Smith does not argue his sentence was unauthorized
under any other basis.
*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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