Filed 10/5/20 P. v. Floyd CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
THE PEOPLE, B306167
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA051229)
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Laura C. Ellison, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant Sylvester Floyd filed a motion in the trial
court for modification of his “Three Strikes” sentence based
on Penal Code1 section 1016.8. The court denied the motion,
and he appealed. His appellate counsel filed a brief raising
no issues on appeal. Floyd then filed a supplemental brief
reasserting the arguments he raised in his motion and further
arguing that his appellate counsel is constitutionally deficient
for failing to raise issues on appeal. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In November 1985, Floyd was convicted by plea of
willful cruelty of a child causing great bodily injury. (§§ 273a,
former subd. (1), 12022.7.)
In April 1992, Floyd was convicted by plea of arson of an
inhabited structure. (§ 451, subd. (b).)
In 1994, the California Legislature and electorate
separately enacted the Three Strikes law. (Stats. 1994, ch. 12,
pp. 71–75 [amending section 667, effective March 7, 1994];
Prop. 184, as approved by voters, Gen. Elec. (Nov. 8, 1994)
[enacting section 1170.12].) The crimes to which Floyd
pleaded guilty in 1985 and 1992 qualified as serious or violent
felonies, or strikes, under the Three Strikes law. (See §§ 667,
subd. (d)(1), 667.5, subd. (c)(8) & (10), 1170.12, subd. (b)(1).)
In 2002, a jury convicted Floyd of being a felon in
possession of a firearm (former § 12021, subd. (a)(1)) and
found that he had been convicted of two prior convictions that
qualified as strikes under the Three Strikes law. The court
sentenced him to prison for 25 years to life.
1 Subsequent statutory references are to the Penal Code.
In October 2003, this court affirmed the judgment,
rejecting Floyd’s argument that his sentence constituted cruel or
unusual punishment. (People v. Floyd (Oct. 28, 2003, B166120)
In 2018, this court affirmed the trial court’s order denying
Floyd’s petition to be resentenced under the Three Strikes
Reform Act of 2012. (People v. Floyd (July 16, 2018, B286819)
In April 2020, Floyd filed a motion in the trial court for
modification of his sentence based on section 1016.8. Floyd
argued that his 1985 and 1992 convictions should be vacated
because at the time he entered into his plea bargains he could
not have known that the Legislature and the electorate would
subsequently enact the Three Strikes law and expose him to
increased sentences for future crimes. He further argues that,
because the prior convictions should be vacated, he should be
resentenced for his 2002 conviction without regard to the Three
On May 4, 2020, the trial court summarily denied the
motion. Floyd timely appealed.
We appointed counsel for Floyd, who filed a brief pursuant
to People v. Serrano (2012)
211Cal. App. 4th496
, stating that
he reviewed the record and found no arguable issues to raise on
appeal. He so informed Floyd, provided Floyd with a copy of the
record and his brief, and told Floyd that he had the right to file
a supplemental brief. Counsel stated that he remains available
to brief any issues upon our request.
Floyd filed a supplemental brief contending: (1) His
counsel in this appeal is constitutionally deficient by filing a
brief that raises no arguable issues; and (2) He is entitled to the
benefit of section 1016.8 and, on that basis, the court should
vacate his plea bargains and resentence him.
Floyd’s motion for modification of his sentence was based
on section 1016.8. Subdivision (a)(4) of that statute provides:
“A plea bargain that requires a defendant to generally waive
unknown future benefits of legislative enactments, initiatives,
appellate decisions, or other changes in the law that may
occur after the date of the plea is not knowing and intelligent.”
(§ 1016.8, subd. (a)(4).) Subdivision (b) states: “A provision
of a plea bargain that requires a defendant to generally waive
future benefits of legislative enactments, initiatives, appellate
decisions, or other changes in the law that may retroactively
apply after the date of the plea is void as against public policy.”
(§ 1016.8, subd. (b).)
The Legislature enacted section 1016.8 in response to a
report that a particular district attorney’s office was including
a provision in plea agreements whereby the defendant agreed
to waive “ ‘all future potential benefits of any legislative actions
or judicial decisions or other changes in the law that may occur
after the date of this plea,’ ” and a statement in a 2019 decision
indicating that such a waiver would be enforceable. (People v.
52Cal. App. 5th1145
, 1153, citing Sen. Com.
on Public Safety, Analysis of Assem. Bill No. 1618 (2019–2020
Reg. Sess.) July 1, 2019, pp. 6–7.) By enacting section 1016.8,
the Legislature “intended to ‘make such provisions in a plea
bargain void as against public policy.’ ” (People v.
52 Cal.App.5th at p. 1153.)
Initially, we note that Floyd did not provide the trial court
or this court with the terms of his plea bargains and, therefore,
we cannot determine whether the agreement includes a waiver
that would be void under section 1016.8. He did provide us with
a transcript of the hearing on his 1985 plea, but it does not refer
to any type of waiver that would be affected by section 1016.8.
Next, although section 1016.8 applies retroactively to
cases not yet final on appeal (People v.
Cal.App.5th at p. 1153), Floyd’s judgment has long been final.
Nothing in section 1016.8 authorizes a collateral attack on a
Even if section 1016.8 applies to Floyd’s plea agreements,
the statutes would not help him because he is not seeking to
obtain the benefit of changes in any law that postdates his plea
bargains. Rather, he is seeking to avoid the adverse effect of
a post-plea change in the law, namely, the enactment of the
Three Strikes law. It is well-established that convictions based
on guilty pleas that predate enactment of the Three Strikes law
can enhance sentences imposed under that law. (See People v.
117Cal. App. 4th1065
, 1068–1070; People v.
36Cal. App. 4th468
, 476–479; see also Doe v. Harris
, 66 [a plea agreement does not insulate
the parties “from changes in the law that the Legislature has
intended to apply to them”].) Nothing in section 1016.8 alters
that principle. Therefore, the court did not err in denying
Because Floyd’s reliance on section 1016.8 is unavailing
and he offered no other basis for relief, his appellate counsel
properly declined to assert an argument based upon it, and our
review of the record does not disclose any other arguable issues
on appeal. We therefore reject Floyd’s contention that he has
been deprived of his right to the effective assistance of appellate
counsel. (See Smith v. Robbins (2000)
[appellate counsel is not deficient for failing to find arguable
issues on appeal when defendant fails to establish the existence
of an arguable issue].)
We are satisfied that Floyd’s counsel has fulfilled his
responsibilities (see People v. Cole (2020)
52Cal. App. 5th1023
, 1038, petn. for review pending, petn. filed Sept. 4, 2020,
S264278) and conclude that the appeal raises no arguable
The trial court’s May 4, 2020 order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.