Opinion
B296595
02-20-2020
THE PEOPLE, Plaintiff and Respondent, v. DARRIN LYNCH, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA106660)
THE COURT:
In June 2017, Darrin Lynch (defendant) snatched a gold necklace from around the neck of a man walking on the street. The People charged defendant with second degree robbery (Pen. Code, § 211). The People alleged that defendant's prior convictions for robbery in 1990, and for attempted robbery (§§ 664/211) in 1996 and again in 2003, each qualified as "strikes" within the meaning of our "Three Strikes" law (§§ 667, subds. (b)-(j) & 1170.12, subds. (a)-(d)), as well as prior "serious" felonies (§ 667, subd. (a)). The People further alleged that defendant suffered five prior convictions for which he served prison terms (§ 667.5, subd. (b))—namely, the three serious felonies set forth above plus a 2001 conviction for inflicting corporal injury on a spouse/cohabitant (§ 273.5) and 2009 conviction for petty theft with priors (§ 666).
All future statutory references are to the Penal Code unless otherwise stated.
On January 10, 2019, the trial court gave an indicated sentence of 15 years in state prison. The People objected, citing defendant's extensive criminal history. In response, the court explained the current charge was a "strong-arm robbery" with "minimal" injuries to the victim, but also noted defendant's prior conduct was "severe" and did "warrant enhancements."
Defendant accepted the court's indicated sentence, pled no contest to second degree robbery, and admitted all prior convictions and enhancements. Defendant was advised of the consequences of his plea, indicated he understood them, waived his constitutional rights, and indicated he was pleading freely and voluntarily.
The court then imposed its indicated sentence. To do so, it dismissed the 1990 and 1996 strike allegations, turning the case into a "second strike" case. The court then imposed a 10-year base sentence (comprised of a high-end five year sentence, doubled due to the remaining strike), plus five years for one prior serious felony. The remaining enhancements were dismissed. Defendant also received custody credits and was ordered to pay fees and fines as required by law.
The trial court subsequently granted defendant's motion pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, remitting all fines and assessments.
Defendant appealed, challenging his sentence or other matters occurring after the plea.
This court appointed counsel to represent defendant on appeal. On December 6, 2019, appointed counsel filed a brief raising no issues, asking this court to independently review the record for arguable appellate contentions under People v. Wende (1979) 25 Cal.3d 436. Defendant was advised of his right to file a supplemental brief within 30 days. Defendant responded by filing a 25-page supplemental brief in which he raised two issues.
Defendant attached to his supplemental brief certificates of completion of parenting, addiction, and domestic violence programs from 2017 and 2018. --------
Defendant's first contention is that his case should be remanded for resentencing to permit the trial court to exercise its newly granted discretion to strike the prior serious felony allegation imposed in his case. This discretion was conferred by Senate Bill 1393 (SB 1393). We decline to remand on this ground for two reasons. First, defendant was sentenced on January 10, 2019—nine days after SB 1393 became effective—and we presume that the trial court was aware of its discretion and elected not to exercise it. (Evid. Code, § 664, People v. Valenti (2016) 243 Cal.App.4th 1140, 1178-1179, superseded by statute on another ground in People v. Brooks (2018) 23 Cal.App.5th 932, 946.) Second, the trial court's careful selection of a 15 year sentence based on the fact that a sentence of this duration was "appropriate for the conduct [in the instant case] and for the defendant's prior strikes" all but forecloses any possibility that the court would select a different sentence even if we asked the court to make its ruling more explicit. (E.g., People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand to exercise discretion unnecessary where court indicated it was imposing the "appropriate" sentence].)
Defendant's second contention is that we should reduce his sentence because the various educational programs he completed prior to sentencing constitute "mitigating factors." We cannot do so. The job of selecting the fair and just punishment belongs to the trial court (People v. Clancey (2013) 56 Cal.4th 562, 576), not us. Moreover, the record shows defendant willingly, knowingly and intelligently, entered his plea in exchange for precisely the indicated sentence the trial court imposed; his subsequent dissatisfaction with that sentence is not a ground for relief.
We have examined the entire record and are satisfied that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist. We conclude that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
The judgment is affirmed. /s/_________
LUI, P.J., /s/_________
ASHMANN-GERST, J., /s/_________
HOFFSTADT, J.