People v. Smith CA2/1

Filed 11/18/21 P. v. Smith CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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—