People v. Flores CA2/4

Filed 4/22/21 P. v. Flores 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B307415 (Los Angeles County Super. Ct. No. PA065635) Plaintiff and Respondent,

v. SERGIO FLORES, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden A. Zacky, Judge. Dismissed. Jill Ishida, under appointment for Defendant and Appellant. No appearance for Plaintiff and Respondent.

INTRODUCTION

Appellant Sergio Flores filed a post-judgment motion in the trial court seeking to modify his sentence by striking a 10-year enhancement for using a firearm during the commission of his crimes. Appellant argued that the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.) entitled him to such relief. The trial court denied appellant’s motion, and he timely appealed. His court-appointed counsel filed an opening brief raising no issues and invoking People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Appellant filed a supplemental brief. Following Serrano, supra, 211 Cal.App.4th at p. 503, we consider only the issue raised by appellant in his supplemental brief. We conclude that appellant has appealed from a nonappealable order and thus dismiss this appeal. BACKGROUND In May 2010, a jury convicted appellant of assault with a firearm (Pen. Code, § 245, subd. (a)(2), count one)1, two counts of criminal threats (§ 422, counts two and four), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count three), and possession of a firearm by a felon (§ 12021, subd. (a)(1), count five). The jury further found true the firearm use enhancement on count one pursuant to section 12022.5, subdivision (a). Appellant was sentenced to a total of 16 years and four months in prison, consisting of the upper term of four years on count one, plus 10 years for the firearm enhancement; eight months (one-third the mid-term) on each of counts two and four; one year (one-third the mid-term) on count three; and the upper term of three years on count five. The court ordered the sentences on counts two through four to run consecutively, and stayed the sentence on count five pursuant to section 654. We affirmed the judgment in our prior unpublished decision, People v. Flores (August 24, 2011, B225596) [nonpub.opn.]. On July 9, 2020, appellant filed a motion asking the trial court to consider striking the 10-year firearm enhancement. He argued that the court did not have such discretion at the time of his sentencing, but should exercise