Opinion
B324580
06-07-2023
THE PEOPLE, Plaintiff and Respondent, v. BARRINGTON JEFFRIES, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, LA024643 Richard H. Kirschner, Judge.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZUKIN, J. [*]
Defendant and appellant Barrington Jeffries (defendant) appeals from the denial of his motion, made in propia persona, for recall of sentence and resentencing under Penal Code section 1170.126.
All further statutory references are to the Penal Code.
On appeal, defendant's appointed counsel filed an opening brief raising no issues and asking this court to independently review the record. Counsel provided defendant with a copy of the record on appeal and informed him of his right to file his own supplemental brief. As defendant has done so, we evaluate the specific arguments raised in his brief but do not conduct an independent review of the record to identify unraised issues. (See People v. Delgadillo (2022) 14 Cal.5th 216, 232.)
In his supplemental brief, defendant claims the California Department of Corrections and Rehabilitation (CDCR) wrongfully denied his request to recommend recall of his sentence and resentencing under former section 1170.03 and that the trial court erred in denying his motion. Defendant is not eligible for recall of sentence and resentencing under either section 1170.126 or section 1172.1 (former section 1170.03). We therefore affirm the trial court's denial of his motion.
Former section 1170.03 was amended and renumbered as section 1172.1 by Statutes 2022, chapter 58, section 9, effective June 30, 2022.
FACTUAL AND PROCEDURAL BACKGROUND
In 1997, defendant was convicted of two counts of robbery (§ 211). Based on the jury's finding that he had two prior serious felony convictions, defendant was sentenced to a third "strike" sentence of 25 years to life for each of the two robbery counts, to run consecutively, with a five-year enhancement for the prior serious felony conviction. (§§ 667, subd. (a)(1); 1170.12.) This court affirmed the convictions and sentence, which became final in 1998.
On September 22, 2022, defendant filed a motion for recall and resentencing, citing section 1170.126, a recommendation by the prison staff that the CDCR director initiate recall proceedings, recently enacted legislation including the Racial Justice Act (§ 745), and the policies of the new Los Angeles County District Attorney.
In its November 1, 2022 minute order denying defendant's motion, the trial court noted that the court did not receive a recall and resentencing request from the CDCR or the Board of Parole Hearings and that former section 1170.03 did not authorize a defendant to initiate a recall and resentencing request. The trial court denied the motion on that basis. This appeal followed.
DISCUSSION
Defendant is not eligible to file a petition for recall of sentence and resentencing under section 1170.126. A defendant is eligible for resentencing under section 1170.126 only if (1) he or she is serving an indeterminate third strike sentence for a felony that is not defined as serious or violent under subdivision (c) of sections 667.5 or 1192.7; (2) the third strike sentence was not imposed for one of certain enumerated, disqualifying offenses; and (3) the defendant had no prior conviction for any of certain other enumerated, disqualifying offenses. (§ 1170.126, subd. (e).) Defendant's third strike conviction was for robbery, a serious felony as defined under section 1192.7, subdivision (c), making him ineligible for resentencing under section 1170.126, subdivision (e). (Ibid.)
Defendant is also ineligible for resentencing under section 1170.126 because his petition was untimely, and he made no showing of good cause for the delay. Section 1170.126 allows a petition for recall of sentence to be filed within two years of the statute's effective date, or thereafter only upon a showing of good cause for the delay. (§ 1170.126, subd. (b).) Section 1170.126 took effect in November 2012. The statutory time period for filing a petition has elapsed, and defendant has made no good cause showing.
II. Section 1172.1
Defendant is ineligible for recall of sentence and resentencing under section 1172.1 because neither the CDCR nor the Board of Parole Hearings recommended recall and resentencing for defendant. Subdivision (a)(1) of the statute allows a court to recall a defendant's sentence and to resentence the defendant (1) upon the recommendation of the Secretary of the CDCR or the Board of Parole Hearings, or (2) upon the court's own motion, within 120 days of the defendant's date of commitment. (§ 1172.1, subd. (a)(1).) Neither of those circumstances are present here.
DISPOSITION
The order denying defendant's petition for recall of sentence and resentencing is affirmed.
WE CONCUR: COLLINS, Acting P. J. MORI, J.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.