Opinion
E083288
07-19-2024
THE PEOPLE, Plaintiff and Respondent, v. LARRY LOVELL BRIGGS, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB19001131, Harold T. Wilson, Jr., Judge. Appeal dismissed.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
Defendant and appellant Larry Lovell Briggs appeals the order of the San Bernardino County Superior Court denying his Penal Code section 1172.6 petition for resentencing. We will dismiss the appeal.
Defendant's petition was filed on a section 1170.95 petition form. Section 1170.95, which became effective January 1, 2019 (Sen. Bill No. 1437, Stats. 2018, ch. 1015, § 4), amended Penal Code sections 188 and 189 to limit the reach of the felony murder rule and to eliminate the natural and probable consequences doctrine in cases of first and second degree murder. The statute was amended effective January 1, 2022, to expand the provisions to include attempted murder (Sen. Bill No. 775, Stats 2021, ch. 551, § 2) and was later renumbered as section 1172.6 without change in the text (Assem. Bill No. 200, Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code.
BACKGROUND
In May 2023, defendant entered a plea of no contest to charges of attempted murder (§§ 187, subd. (a), 664) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)). He also admitted he was armed with a firearm at the time of the attempted murder (§ 1170, subd. (b)(2)) and had suffered one prior strike conviction (§ 1170.12, subds. (a)-(d)). In June, the trial court sentenced defendant to 20 years in state prison and dismissed the remaining counts and charges in keeping with the plea agreement.
The remaining charges were assault with a firearm (§ 245, subd. (a)(2)) with personal use of a firearm and infliction of great bodily injury (§§ 12022.5, subd. (a), 12022.7, subd. (a)), criminal threats (§ 422, subd. (a)), and, possession of a firearm by a felon (§ 29800, (a)(1)), as well as firearm enhancements in connection with the attempted murder charge and an allegation of a second strike offense.
Four months later, defendant filed a petition pursuant to section 1172.6. The People filed a written opposition to the petition, arguing defendant was ineligible for resentencing relief because he was represented by counsel and had full knowledge of the provisions of section 1172.6, which were enacted and became effective prior to defendant entering into his plea agreement.
At the hearing, defendant's counsel recognized his client's plea was entered long after section 1172.6 became effective, noted he had reviewed the opinion in People v. Reyes (2024) 97 Cal.App.5th 292 (Reyes), and submitted. The trial court denied the petition.
In Reyes, the defendant pled no contest to a charge of second degree murder with a firearm enhancement. (Reyes, supra, 97 Cal.App.5th at p. 295.) The Fifth District Court of Appeal held the procedure for seeking resentencing relief set forth in section 1172.6 does not apply to defendants who were convicted after the effective date of the current law. (Reyes, at pp. 296, 298-299.)
Defendant timely filed two notices of appeal from the denial. In his first notice, he suggests he is eligible to have the enhancements related to his prior convictions stricken pursuant to section 1385. He also claims his then attorney had been manipulated and deceived him into agreeing to the plea by telling him the "double ups" imposed on account of the enhancements "would come off for sure" when he "got up state." In his second notice of appeal, defendant reiterated the claims contained in his first notice, added citations to case authorities, and argued that he is entitled to resentencing pursuant to section 745 because his sentence resulted from racial discrimination. We appointed counsel to represent defendant on appeal.
DISCUSSION
Defendant's counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) that does not raise any issues. The brief includes a request for this court to exercise its discretion to independently review the record for the reasons articulated in People v. Griffin (2022) 85 Cal.App.5th329, 336 and sets forth two potentially arguable issues for our consideration:
(i) whether the trial court erred when it summarily denied defendant's section 1172.6 petition for resentencing; and, (ii) whether any of the grounds for relief asserted in defendant's two notices of appeal present a basis for relief from his convictions and sentence.
Upon receipt of the opening brief, we advised defendant that, because the appeal is from the denial of a postconviction proceeding, this court is not required to conduct an independent review of the record, and cited Delgadillo, supra, 14 Cal.5th 216. We invited defendant to file any supplemental brief deemed necessary and advised him that failure to do so might result in dismissal of the appeal as abandoned. Defendant did not file a brief.
Neither defendant nor his counsel have presented an issue and, upon our review of the record, we do not find any error. Accordingly, we dismiss defendant's appeal.
DISPOSITION
The appeal is dismissed.
We concur: MILLER J., RAPHAEL J.