People v. Green CA2/1

Filed 1/22/24 P. v. Green CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B329632

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA016472) v.

LIFALFA GREEN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed. John L. Staley, 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, Steven D. Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

Effective January 1, 2018, Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1–2) amended Penal Code1 sections 12022.5 to give trial courts discretion to strike or dismiss a firearm enhancement imposed under that section “in the interest of justice pursuant to Section 1385” in “any resentencing that may occur pursuant to any other law.” (§ 12022.5, subd. (c).) Appellant Lalifa Green argues his defense counsel rendered ineffective assistance by failing to argue at his 2023 resentencing hearing that the trial court should exercise its discretion to strike the four-year Penal Code section 12022.5 firearm enhancement. He asks us to remand this case to the resentencing court to allow it to exercise that discretion. It is undisputed that under his current sentence, Green was eligible for parole in 2018 and he identifies no prejudice from his counsel’s alleged ineffective assistance of counsel. Instead, Green asserts this court cannot “assume that a four-year sentence has no penal consequences” or assume that a firearm enhancement sentence “would not influence the parole process.” Because affirmatively showing prejudice is a prerequisite to an ineffective assistance of counsel claim (In re Avena (1996) 12 Cal.4th 694, 721), Green’s claim fails. We therefore affirm.