People v. Flournoy CA4/1

Filed 5/6/21 P. v. Flournoy CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078066
Plaintiff and Respondent,
v. (Super. Ct. No. SCD278729)
MARKICE A. FLOURNOY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Fredric L. Link, Judge. Affirmed as modified.
Joanna McKim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Michael Pulos, Kathryn Kirschbaum and Nora S. Weyl, Deputy Attorneys
General, for Plaintiff and Respondent.
In 2018, Markice Flournoy pleaded guilty to corporal injury to a
spouse/roommate (Pen. Code,1 § 273.5, subd. (a)) and admitted a prison prior
(§ 667.5, subd. (b)). As part of a plea bargain, Flournoy agreed to a prison
term of eight to 10 years. The remaining charges and allegations were
dismissed. On February 20, 2019, the court sentenced Flournoy to a 10-year
prison term.
Flournoy did not appeal.
In 2019, the Legislature passed Senate Bill No. 136 effective January 1,
2020. That measure changed the definition of prison priors under
section 667.5, subdivision (b), such as that admitted in the present case. The
prison prior admitted in this case does not fit the definition of such prior after
January 1, 2020.
In August 2020, Flournoy filed a petition requesting resentencing
under section 1170, subdivision (d). Specifically, Flournoy sought to have the
trial court strike his prison prior and to reduce his sentence accordingly.
The trial court erroneously viewed the petition as a request for
resentencing under section 1170.95 (a statute applying only to persons
convicted of murder). The court purported to deny the petition, finding
Flournoy had not made a prima facie showing of eligibility for relief under
section 1170.95.
Flournoy filed a timely notice of appeal.
Appellate counsel filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating counsel had not been able to identify any
arguable issues for reversal on appeal. Counsel asked the court to review the
record for error as mandated by Wende. Counsel also complied with
Anders v. California (1967) 386 U.S. 738 (Anders) by identifying as a possible
1 All further statutory references are to the Penal Code.
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issue whether Flournoy was eligible for retroactive application of Senate Bill
No. 136 to his case.
During our review of the record, we discovered the trial court denied
Flournoy’s petition based upon the application of a statute that had nothing
to do with Flournoy’s petition. We requested and received supplemental
briefs from the parties on the issue of whether Flournoy was eligible for
Senate Bill No. 136 and what action the court should take in light of the trial
court’s reliance on the wrong statute.
We conclude Flournoy’s case was final before the effective date of
Senate Bill No. 136, thereby denying him the retroactive benefit of the
statute.
DISCUSSION
In their supplemental briefs the parties are largely in agreement.
Counsel both concede Flournoy’s case was final before the effective date of the
statute. He was sentenced on his guilty plea in February 2019. He did not
appeal. Thus, his conviction became final 60 days after judgment. (See Cal.
Rules of Court, rule 8.308(a) [defendant has 60 days to appeal]; People v.
McKenzie (2018) 25 Cal.App.5th 1207, 1214, affd. (2020) 9 Cal.5th 40.)
Defendants can retroactively benefit from a change in cases where the
defendant’s case is not final on the effective date of the new law. (In re
Estrada (1965) 63 Cal.2d 740, 742, 744-745.) The People argue, and
appellate counsel concedes, that Flournoy’s case was final before the effective
date of Senate Bill No. 136 and therefore he cannot claim the benefit of the
law change. We agree and conclude Flournoy’s petition for resentencing
under section 1170, subdivision (d) was without merit.
The question remains as to what remedy this court should employ. We
could remand the case to the trial court to review the petition and apply the
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correct statute. We decline to impose a remand and a new hearing for no
beneficial purpose. Instead we will direct the trial court to amend its order
denying the petition and enter a denial on the correct statutory grounds.
DISPOSITION
The trial court is directed to amend its order denying the resentencing
petition to reflect denial under section 1170, subdivision (d) and to correct the
court’s minutes accordingly. Otherwise, the amended order denying
Flournoy’s petition is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
GUERRERO, J.
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