Opinion
F080326
02-22-2021
THE PEOPLE, Plaintiff and Respondent, v. JEREMY EUGENE LYND, Defendant and Appellant.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16900224)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
Jeremy Eugene Lynd appeals from the trial court's refusal at resentencing to strike or dismiss either of his Penal Code section 667, subdivision (a) priors. Lynd's appellate counsel has filed a brief that raises no issues for appeal and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having conducted that review, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
SUMMARY OF THE CASE AND FACTS
A jury found Lynd guilty of attempted robbery (Count 3; §§ 664/211); assault with a deadly weapon, a vehicle (Count 4; § 245, subd. (a)(1)); and assault with a stun gun or taser (Count 5; § 244.5, subd. (b)). In a bifurcated proceeding, the trial court found Lynd had three prior serious and/or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), and three prior serious felony convictions (§ 667, subd. (a)(1)).
Lynd's codefendant was charged in counts 1 and 2.
The trial court also found true a prior prison term under section 667.5, subdivision (a), which it later vacated, finding the enhancement did not apply to Lynd. It dismissed the concurrent section 667, subdivision (a)(1) enhancement as well.
The trial court sentenced Lynd to 25 years to life under the three strikes law on the attempted robbery. It stayed the terms on the other two convictions pursuant to section 654. The trial court also imposed two consecutive five-year terms on the prior serious felony convictions tried separately (§ 667, subd. (a)(1)), for a total prison term of 35 years to life. Fines and fees were imposed.
Upon Lynd's initial appeal (People v. Lynd (Aug. 22, 2019, F076308) [nonpub. opn.]), we affirmed the judgment of conviction but remanded for the trial court to hold a resentencing hearing with the limited purpose of exercising its discretion under Senate Bill No. 1393 to strike or dismiss Lynd's two prior serious felony sentencing enhancements under section 667, subdivision (a)(1). We also directed the trial court to correct the abstract of judgment.
Senate Bill No. 1393, effective January 1, 2019, amends section 667, subdivision (a)(1) to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) --------
At the November 18, 2019, resentencing hearing following remand, at which Lynd was present and represented by counsel, Lynd's counsel asked the court to exercise its discretion to strike the prior serious felony convictions given Lynd's "post-sentence conduct" and the fact that the enhancements were "superfluous" The prosecutor agreed with the trial court's prior sentencing decision.
The trial court declined to strike Lynd's prior serious felony convictions, noting it would not have dismissed the priors at the previous sentencing, even if it had had the discretion to do so, stating that "the maximum exposure or period of time in the penal institution was justified based upon the conduct and based upon the history." The abstract of judgment was corrected per our directions. Lynd appealed.
DISCUSSION
We appointed counsel, who filed an opening brief pursuant to Wende, supra, 25 Cal.3d 436, requesting independent review of the record for arguable issues. Appellate counsel notified Lynd he did not raise any arguable issues, sent Lynd a copy of the Wende brief, and informed him that he had 30 days from the filing of the brief to submit any claims, arguments, or issues that he wished our court to review. We have received no reply from Lynd.
We are satisfied no arguable issues exist and Lynd's counsel has fully satisfied his responsibilities under Wende, supra, 25 Cal.3d at page 441 and People v. Kelly (2006) 40 Cal.4th 106, 123-124.
DISPOSITION
The judgment is affirmed.