Opinion
B299552
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. VELTON BOONE, Defendant and Appellant.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA326464) APPEAL from an order of the Superior Court of Los Angeles County, Larry P. Fidler, Judge. Affirmed. Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Velton Boone appeals the denial of his petition to recall sentence under Penal Code section 1170, subdivision (d)(1). We affirm.
Statutory references are to this code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010 a jury convicted Boone of two counts of kidnapping to commit robbery, one count of attempted second degree robbery, one count of second degree burglary and four counts of assault with a firearm. The jury also found true special allegations Boone had personally used a firearm in the commission of each offense. In a bifurcated proceeding the trial court found true special allegations Boone had suffered four prior serious or violent felony convictions. Boone appealed, and this court reversed one of the convictions for aggravated kidnapping and further modified the judgment to strike a firearm-use enhancement as to the burglary count. In all other respects we affirmed the judgment. (People v. Boone (Aug. 25, 2011, B223335) [nonpub. opn.].) On remand on March 2, 2012 the trial court sentenced Boone to an aggregate indeterminate state prison term of 105 years to life.
In 2019, representing himself, Boone filed a Request for Recall and Resentence pursuant to section1170, subdivision (d)(1). Boone cited in support of his request section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. On June 28, 2019 the superior court denied Boone's request.
DISCUSSION
We appointed counsel to represent Boone on appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. On January 2, 2020 we advised Boone he had 30 days within which to submit any contentions or issues he wished us to consider.
On January 13, 2020 we received a typed, one-page supplemental brief with three pages of attachments in which Boone argued the passage of Senate Bill No. 1393, which, effective January 1, 2019, allows the trial court to exercise its discretion to strike or dismiss section 667, subdivision (a), serious felony enhancements (see Stats. 2018, ch. 1013, §§ 1 & 2), supported his request for resentencing. On January 27, 2020 we received a second supplemental brief in which Boone argued, because of his age, poor health and exceptional behavior while in prison, he is entitled to resentencing in the interest of justice. Numerous exhibits attached to the typed, four-page brief attested to Boone's successful rehabilitation efforts.
Section 1170, subdivision (d)(1), the basis for Boone's request for resentencing, authorizes the superior court to recall a defendant's sentence and impose a new reduced sentence based on positive postconviction factors "within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates." Boone petitioned for resentencing well beyond the statutory deadline, and no recommendation for resentencing was made to the superior court. Accordingly, the court lacked authority to grant Boone's request. (See People v. Loper (2015) 60 Cal.4th 1155, 1166 [the trial court's "refusal to act on a defective defense motion for resentencing could not have affected any legal rights" of the defendant].)
As to defendants in state custody, section 1170, subdivision (d)(1), provides: "When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison . . . the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court resentencing under this paragraph may reduce a defendant's term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice. The court may consider postconviction factors, including, but not limited to, the inmate's disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate's risk for future violence, and evidence that reflects that circumstances have changed since the inmate's original sentencing so that the inmate's continued incarceration is no longer in the interest of justice. Credit shall be given for time served." --------
Neither section 1385 nor People v. Superior Court (Romero), supra, 13 Cal.4th 497, cited by Boone in his superior court petition, pertains to resentencing under section 1170, subdivision (d)(1). Romero authorizes a trial court before sentencing to dismiss a prior serious or violent felony conviction under the three strikes law in the interest of justice. Section 1385 is the more general statutory provision authorizing the court to strike or dismiss a criminal charge or a special enhancement allegation in furtherance of justice at or before a defendant is sentenced. Similarly, Senate Bill No. 1393, which modified the previously mandatory five-year sentence enhancement for prior serious felonies prescribed by section 667, subdivision (a), and granted the trial court discretion to strike that enhancement at sentencing, does not assist Boone, whose convictions were final long before the new provision took effect. (See People v. Alexander (2020) 45 Cal.App.5th 341, 343, 347; People v. Humphrey (2020) 44 Cal.App.5th 371, 380.)
We have examined the record and are satisfied appellate counsel for Boone has complied with his responsibilities and there are no arguable issues. (See Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J. We concur:
SEGAL, J.
FEUER, J.