Filed 10/1/21 P. v. Bryant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B306977
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA248242)
v.
JEFFREY BRYANT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael D. Abzug, Judge. Affirmed.
G. Martin Velez, 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, Paul M. Roadarmel, Jr., and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant and appellant Jeffrey Bryant is currently
serving a sentence of more than 60 years for taking part in
five armed robberies and attempted robberies of check cashing
stores in 2002 and 2003. In January 2020, the Secretary of
the Department of Corrections and Rehabilitation (CDCR)
sent a letter to the trial court recommending that the court
recall Bryant’s sentence under Penal Code1 section 1170,
subdivision (d) and resentence him in light of recent amendments
to the law giving trial courts the discretion to strike certain
sentence enhancements that had previously been mandatory. In
May 2020, Bryant filed a request with the trial court to dismiss
enhancements that accounted for more than half his aggregate
sentence. Bryant contends that the trial court abused its
discretion by rejecting his request. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 2004, a jury convicted Bryant of three counts of robbery
(§ 211), two counts of attempted robbery (§ 211, 664), three
counts of false imprisonment (§ 236), and one count of possession
of a firearm by a felon (former § 12021, subd. (a)(1)).2 The jury
also found that Bryant was armed with a firearm during the
commission of the offenses, and that he had previously suffered
three serious felony convictions (see § 667, subd. (a)(1)). Bryant
admitted that he had three prior strike convictions, but the trial
court struck two of these convictions for purposes of sentencing
1Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2 In 2010, the Legislature abolished section 12021
and enacted section 29800, subdivision (a), which continues
section 12021, subdivision (a) without substantive change.
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pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497.
The trial court imposed an aggregate sentence of
60 years 8 months in prison. The sentence included three
then-mandatory five-year serious felony enhancements under
section 667, subdivision (a)(1), as well as more than 23 years of
mandatory enhancements under sections 12022.5 and 12022.53
for personally using a firearm in the commission of the crimes.
In all, the enhancements accounted for more than 38 years of
the 60 years 8 month aggregate sentence.
In 2017, the Legislature enacted Senate Bill No. 620
(2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2, pp. 5104−5106)
(Senate Bill No. 620), which amended sections 12022.5 and
12022.53 to provide that “[t]he court may, in the interest of
justice pursuant to [s]ection 1385 and at the time of sentencing,
strike or dismiss an enhancement otherwise required to
be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant
to any other law.” (§ 12022.5, subd. (c); accord, § 12022.53,
subd. (h).) Similarly, in 2018, the Legislature enacted Senate
Bill No. 1393 (2017−2018 Reg. Sess.) (Stats. 2018, ch. 1013)
(Senate Bill No. 1393), which amended section 1385 to delete
a provision barring the trial court from “strik[ing] any prior
conviction of a serious felony for purposes of enhancement of
a sentence under Section 667.” (Former § 1385, subd. (b).) The
effect of these laws was to give the trial court discretion to strike
serious-felony and firearm enhancements that had previously
been mandatory. (See People v. Johnson (2019) 32 Cal.App.5th
26, 67–68 (Johnson).)
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In June 2019, the CDCR sent the trial court a letter calling
the court’s attention to discrepancies between the abstract of
judgment and a minute order the court had issued at the time
of sentencing. In January 2020, the CDCR sent another letter
recommending under section 1170, subdivision (d) that the
trial court recall Bryant’s sentence and resentence him in light
of Senate Bill No. 1393. In May 2020, Bryant filed a request
with the trial court to dismiss his serious felony and firearm
enhancements. The trial court denied the motion, finding that
“a lengthy sentence . . . remains a lawful and appropriate reply”
to Bryant’s crimes.
DISCUSSION
Bryant contends that the trial court abused its discretion
by denying his motion to strike the sentence enhancements,
arguing that the court failed to take into account the length of
Bryant’s sentence in light of the recent change in public policy
against long sentences. The Attorney General disagrees on the
merits and also contends that the trial court lacked jurisdiction
to consider striking the enhancements because the judgment
against Bryant was final at the time Senate Bill Nos. 620 and
1393 became effective. We disagree with the Attorney General
on the jurisdictional question but affirm on the merits.
A. The CDCR Letter Gave the Trial Court
Jurisdiction Under Section 1170,
Subdivision (d)(1) to Consider Striking
the Enhancements
The Attorney General contends that the trial court lacked
jurisdiction to consider striking Bryant’s sentence enhancements.
In most circumstances, the Attorney General would be correct.
“When new legislation reduces the punishment for an offense,
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we presume that the legislation applies to all cases not yet
final as of the legislation’s effective date.” (People v. Esquivel
(2021) 11 Cal.5th 671, 673 (Esquivel), italics added.) This rule
applies to statutes like Senate Bill Nos. 620 and 1393 that
do not reduce the punishment for an offense in all cases but
give trial courts discretion to reduce a sentence. (See Esquivel,
supra, 11 Cal.5th at pp. 675−676; People v. Francis (1969) 71
Cal.2d 66, 76; Johnson, supra, 32 Cal.App.5th at pp. 67–68.)
Unless the Legislature clearly indicates otherwise, however, we
presume that ameliorative statutes do not apply do defendants
whose convictions are final at the time the law becomes effective.
(See Esquivel, supra, at p. 677.)
A conviction is final for these purposes when “the criminal
prosecution or proceeding as a whole is complete.” (Esquivel,
supra, 11 Cal.5th at p. 679.) This occurs when the defendant
has either exhausted direct review of his conviction or the time
to seek direct review has expired, and, in cases where the court
imposes probation, the defendant has completed probation or
the order revoking probation has become final. (Ibid.; People v.
McKenzie (2020) 9 Cal.5th 40, 46.)
Neither Senate Bill No. 620 nor 1393 contains language
indicating that the Legislature intended to expand the
retroactive application of the law to benefit defendants whose
convictions are already final. For this reason, in cases where a
defendant applied for resentencing under Senate Bill No. 620
or 1393 after his conviction was final, courts have universally
held that the trial court lacked jurisdiction to grant relief. (See,
e.g., People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; People v.
Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez); People v.
Alexander (2020) 45 Cal.App.5th 341, 344.)
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An exception applies, however, when the trial court
acts under its authority to resentence a defendant pursuant to
section 1170, subdivision (d). (Hernandez, supra, 34 Cal.App.5th
at p. 326.) Under this subdivision, “the court may . . . recall the
sentence and commitment previously ordered and resentence
the defendant in the same manner as if they had not previously
been sentenced, provided the new sentence, if any, is no greater
than the initial sentence.” (§ 1170, subd. (d)(1).) The trial court
may exercise this authority on its own motion for up to 120 days
after initially imposing the sentence, or at any time after
receiving a recommendation to reconsider the sentence from the
Secretary of the CDCR or certain other officials. (Ibid.; People v.
Ramirez (2008) 159 Cal.App.4th 1412, 1424.)
The Attorney General contends that the letter from
the CDCR in June 2019 requesting that the court address
inconsistencies between the abstract of judgment and the
court’s minute orders is not an authorization for the trial court
to exercise its authority under section 1170, subdivision (d). We
need not decide this question because the CDCR’s subsequent
letter dated January 17, 2020 unequivocally is such an
authorization. In the letter, the Secretary of the CDCR
“recommend[s] that inmate Bryant’s sentence be recalled and
that he be resentenced in accordance with section 1170,
subdivision (d).” The Secretary asked the trial court in particular
to consider striking the five-year serious felony enhancements
from Bryant’s sentence.
The CDCR letter thus gave the trial court the authority
to “resentence the defendant in the same manner as if [he]
had not previously been sentenced.” (§ 1170, subd. (d)(1).)
The Supreme Court has interpreted this text as giving the trial
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court broad authority. When resentencing under section 1170,
subdivision (d)(1), the court’s authority is “ ‘as broad as
that possessed by the court when the original sentence was
pronounced.’ ” (People v. Johnson (2004) 32 Cal.4th 260, 266.)
“The court may . . . impose any otherwise lawful resentence
suggested by the facts available at the time of resentencing.”
(Dix v. Superior Court (1991) 53 Cal.3d 442, 456 (Dix).)
“[U]nder the recall provisions of section 1170, subdivision (d),
the resentencing court has jurisdiction to modify every aspect
of the sentence, and not just the portion subjected to the recall.”
(People v. Buycks (2018) 5 Cal.5th 857, 893.) That includes
the authority to strike Bryant’s firearm and serious felony
enhancements. (See §§ 12022.5, subd. (c), 12022.53, subd. (h),
1385, subd. (b).)
B. The Trial Court Did Not Abuse Its Discretion
by Declining to Strike the Enhancements
Although the trial court had the authority under
section 1170, subdivision (d)(1) to recall Bryant’s sentence
and strike the enhancements, it was not required to do so.
The language of the statute is permissive: “[T]he court may . . .
recall the sentence.” (§ 1170, subd. (d)(1), italics added.) The
Supreme Court has interpreted this to mean that, although a
director of corrections may “recommend recall of a sentence at
any time,” this “apparently does not require the court to respond
to the recommendation.” (Dix, supra, 53 Cal.3d at p. 459.)
Bryant contends, and we agree, that we should review the
trial court’s decision in the same way we would review any other
decision whether to strike sentencing enhancements—for abuse
of discretion. (See People v. Pearson (2019) 38 Cal.App.5th 112,
116.) “ ‘In reviewing for abuse of discretion, we are guided by
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two fundamental precepts. First, “ ‘[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence
of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.’ ” [Citation.] Second, a “ ‘decision will not be
reversed merely because reasonable people might disagree.’ ” ’ ”
(Ibid.) Instead, we must defer to the trial court’s reasonable
determinations. (See ibid.)
Bryant argues that the trial court failed to consider the
recent shift in public policy against lengthy sentences like his,
particularly in light of his age—he was 57 years old at the time
of the resentencing hearing. He is correct that the Legislature
and electorate have recently enacted a number of laws to reduce
the amount of time inmates spend in prison. In addition to
Senate Bill Nos. 620 and 1393, these include Proposition 36,
which eliminated third strike sentences for nonviolent offenders,
Proposition 47, which reduced certain theft- and drug-related
offenses from felonies to misdemeanors, and Senate Bill No. 1437
(2017–2018 Reg. Sess.), which allows defendants convicted of
murder under certain theories to vacate their convictions and be
resentenced to lesser crimes.
But if the Legislature had meant to eliminate firearm
and serious felony enhancements entirely, it could have
repealed the relevant sections of the Penal Code. Instead. the
Legislature made those enhancements discretionary, entrusting
trial courts to determine in which cases lengthy sentences are
merited. As we noted in our opinion in Bryant’s direct appeal
(People v. Bryant (May 31, 2005, B174618) [nonpub. opn.]),
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Bryant committed five separate robberies and attempted
robberies of check cashing businesses. His use of a firearm
was not incidental. In at least one of the robberies, he pointed
a gun at a security guard and told him to “ ‘get on the floor.’ ”
(Bryant, supra, B174618.) Nothing in the record indicates
that the trial court failed to consider the relevant factors in
deciding whether to resentence Bryant, nor that the court
was unreasonable in determining that “a lengthy sentence . . .
remains a lawful and appropriate reply” to Bryant’s crimes.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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