People v. Flynn CA2/4

California Court of Appeal Jan 21, 2021 No. B305706Unpublished

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Holding. The court held that the trial court correctly denied the defendant's motion to recall his sentence because the sentencing law change under Senate Bill No. 1393 does not apply retroactively to a judgment that became final in 2011.

Issues

Whether the trial court erred in denying a motion to recall a sentence based on the retroactive application of Senate Bill No. 1393.
Whether the defendant was denied due process and effective assistance of counsel when appellate counsel filed a brief raising no issues.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Because Flynn’s judgment became final in 2011, Senate Bill 1393, which went into effect January 1, 2019, does not apply retroactively to him.”

“The trial court was therefore correct in denying his motion, and he was not denied effective assistance of counsel or due process when his attorney filed a brief raising no issues.”

Filed 1/21/21 P. v. Flynn CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).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 FOUR

THE PEOPLE, B305706

Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA365181 v.

TYRONE CURTIS FLYNN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, David R. Fields, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

In 2011, defendant and appellant Tyrone Flynn pled no contest to attempted murder (Pen. Code,1 §§ 664/187, subd. (a)) and admitted he inflicted great bodily injury in the commission of the offense (§ 12022.7, subd. (a)). He also admitted he sustained a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667.5, subd. (b), 1170.12). The trial court sentenced him to 18 years in state prison, consisting of a low term of five years, doubled to ten years for the prior strike, plus a five-year prior serious felony enhancement and a three-year great bodily injury enhancement. In 2019, Flynn filed a motion to recall his sentence under section 1170, subdivision (d)(1).2 In his motion, he asked the court

1 All undesignated statutory references are to the Penal Code. 2 Section 1170, subdivision (d)(1) provides: “When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or a county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, the county correctional administrator in the case of county jail inmates, or the district attorney of the county in which the defendant was sentenced, 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. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court resentencing under

People v. Flynn CA2/4

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THE PEOPLE, B305706

TYRONE CURTIS FLYNN,

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DISPOSITION

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

COLLINS, J.

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