People v. Lyons CA1/4

Filed 3/19/21 P. v. Lyons CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A160982 v. (Alameda County Super. Ct. OMA LYONS, No. 173660A / HC173660A1) Defendant and Appellant.

MEMORANDUM OPINION1 In this appeal from a postjudgment order pursuant to People v. Serrano (2012) 211 Cal.App.4th 496, Oma Lyons, who is currently serving a 16-year sentence for a voluntary manslaughter conviction (Pen. Code, § 192, subd. (a)) with a firearm use enhancement (Pen. Code, § 12022.5, subd. (a)), filed a pro se petition for recall of his sentence and for resentencing. Citing Penal Code section 1170.1, subdivision (a), as authority for the motion, Lyons requested that the court exercise discretion conferred by a 2018 amendment to Penal Code section 1385 allowing it to strike the firearm use enhancement. (See Sen. Bill No. 620 (2017–2018 Reg. Sess.) § 1 (Senate Bill 620).)

We resolve this case by memorandum opinion because it raises no 1

substantial issue of fact or law. (Cal. Stds. Jud. Admin., § 8.1.)

1

The effective date of Senate Bill 620 was January 1, 2018. (People v. Harris (2018) 22 Cal.App.5th 657, 659.) Lyons was sentenced on January 31, 2018, pursuant to an agreed disposition. His 16-year term of imprisonment has two components, a base term consisting of the middle term of six years for the manslaughter conviction, and a consecutive ten years for the firearm enhancement. The sentencing judge, Hon. James Cramer, was vested with discretion to strike the firearms enhancement at the time of sentencing, but declined to exercise it, imposing a determinate term in accord with the plea bargain. Lyons sought recall of his sentence and resentencing on July 14, 2020, after receiving a copy of a letter dated May 22, 2020, that Cathy Heifner, a case analyst at the California Department of Corrections (CDC), sent to Judge Cramer. In her letter, Heifner requested clarification of a discrepancy in the credits granted to Lyons as shown in the Amended Abstract of Judgment, on the one hand, and a Corrected Minute Order, on the other. Judge Morris Jacobson denied Lyons’s motion for recall of his sentence and for resentencing in an order entered August 24, 2020. Judge Jacobson noted that Lyons made no showing that his sentence was unlawful or unauthorized. In the absence of such a showing, Judge Jacobson ruled, the court was without jurisdiction to entertain Lyons’s petition because it was unrelated to any proceeding then pending (People v. Picklesimer (2010) 48 Cal.4th 330, 337) and because more than 120 days had passed since the imposition of sentence (Pen. Code, § 1170, subd. (d)(1)). Judge Jacobson stated, in addition, that there was no reason to strike the firearms enhancement, since Judge Cramer was vested with discretion to strike the enhancement at the time sentence was imposed but chose to follow the agreed terms of the negotiated disposition. He also noted that in 2019