People v. Black CA2/7 ( 2020 )

Filed 11/4/20 P. v. Black CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303307
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA061811)
v.
ROBERT BLACK JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Leslie E. Brown, Judge. Dismissed.
Jared G. Coleman, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_____________________________
INTRODUCTION
Robert Black Jr. appeals from a postjudgment order
denying his motion for resentencing under Senate Bill No. 136.
We dismiss the appeal.
PROCEDURAL BACKGROUND
On January 10, 2007 a jury convicted Black of first degree
burglary (Pen. Code, § 459).1 He admitted that he had two prior
serious or violent felony convictions within the meaning of the
three strikes law (§§ 667, subds. (b)-(j), 1170.12), that he had two
prior serious felony convictions within the meaning of section
667, subdivision (a)(1), and that he served three prior separate
prison terms within the meaning of section 667.5, subdivision (b).
The trial court sentenced Black to an aggregate prison term of 38
years to life. He appealed, and this court affirmed. (People v.
Black (Aug. 27, 2008, B197340) [nonpub. opn.].)
In October 2019 the Legislature enacted Senate Bill
No. 136 (Stats. 2019, ch. 590, § 1), which amended section 667.5,
subdivision (b), effective January 1, 2020. The new law limited
the applicability of the one-year sentence enhancement for prior
prison terms under section 667.5, subdivision (b), to defendants
who had served a prison term for sexually violent offenses, as
defined in Welfare and Institutions Code section 6600,
subdivision (b). (See People v. Winn (2020) 44 Cal.App.5th 859,
871-872; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) The
amendment to section 667.5 applies retroactively to defendants
1 Undesignated statutory references are to the Penal Code.
2
whose judgments were not yet final as of the statute’s effective
date. (People v. Cruz (2020) 46 Cal.App.5th 715, 739; People v.
Bermudez (2020) 45 Cal.App.5th 358, 378.)
On November 4, 2019 Black filed a document titled a
“Motion/Notice of Motion To Remove 1 Year Prior Prison Term
per S.B. 136 as Illegal Sentence of 3 yrs.” On November 21, 2019
the superior court denied the motion, ruling that, because Senate
Bill No. 136 is “not retroactive,” it did not apply to Black’s
conviction. Black timely appealed.
DISCUSSION
We appointed counsel to represent Black on appeal. After
reviewing the record, counsel filed an opening brief raising no
issues. Counsel also sent Black a copy of the opening brief, a
copy of the record, and a letter advising Black of his option to file
a supplemental brief within 30 days raising any points he chooses
to call to the court’s attention. On July 27, 2020 we received a
six-page letter brief in which Black argued the trial court
imposed an illegal sentence.
The superior court did not err in denying Black’s motion.
Because the judgment in Black’s case was final long before
Senate Bill No. 136 became effective (see People v. Lopez (2019)
42 Cal.App.5th 337, 341-342), the superior court lacked
jurisdiction to grant Black relief under Senate Bill No. 136.
Where the trial court lacks jurisdiction to rule on a motion to
vacate or modify a sentence, an order denying such a motion is
not appealable, and an appeal from such an order must be
dismissed. (People v. Torres (2020) 44 Cal.App.5th 1081, 1084;
see People v. Alexander (2020) 45 Cal.App.5th 341, 345
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[dismissing an appeal from an order denying the defendant’s
motion to strike enhancements for prior serious felony
convictions under Senate Bill No. 1393, which amended section
667 to give trial courts discretion to strike or dismiss such
enhancements, because the trial court lacked jurisdiction to grant
the motion]; People v. Hernandez (2019) 34 Cal.App.5th 323,
326-327 [dismissing an appeal from an order denying the
defendant’s motion to dismiss a firearm enhancement under
Senate Bill No. 620, which amended section 12022.5 to give trial
courts discretion to strike or dismiss firearm enhancements,
because the trial court lacked jurisdiction to grant the motion];
People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 [same].)
We have examined the record and are satisfied that Black’s
appellate attorney has fully complied with his responsibilities
and that there are no arguable issues. (See Smith v. Robbins
(2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756];
People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende
(1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The appeal is dismissed.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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