Filed 5/26/21 P. v. Irvin CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LAYVONTA TRAMALE IRVIN,

Defendant and Appellant.

 B306476

 (Los Angeles County

 Super. Ct. No. BA408988)

THE COURT:

Defendant and appellant Layvonta Tramale Irvin 

(defendant) appeals from the denial of his motion to strike 

sentence enhancements. Where, as here, appointed counsel has 

filed a brief raising no issues in an appeal seeking postjudgment 

relief, the appellate court is not required to conduct an 

independent review of the record for arguable issues. (People v. 

Cole (2020) 52 Cal.App.5th 1023, 1039-1040, review granted Oct. 

14, 2020, S264278; see People v. Serrano (2012) 211 Cal.App.4th 
2

496, 503.) If the defendant files his or her own supplemental 

brief or letter, however, we consider the contentions or arguments 

set forth therein. (People v. Cole, supra, at p. 1039.) After 

defendant was notified of his counsel’s brief and given leave to 

file his own brief or letter setting forth any grounds or argument 

he wanted to have considered, defendant filed his own 

supplemental brief on appeal.

BACKGROUND

In 2013, defendant was convicted in count 2 of battery with 

serious injury, in violation of Penal Code section 243,1 subdivision 

(d), and of mayhem in violation of section 203, in count 3.

Defendant admitted a prior conviction and on October 31, 2013, 

the trial court sentenced defendant under the “Three Strikes” law 

(§§ 667, subds. (b)-(j) & 1170.12) to a total term of 13 years in 

prison, comprised of the middle term of four years for count 3, 

doubled to eight years, plus five years pursuant to section 667, 

subdivision (a)(1); and a concurrent term of 11 years as the 

battery. We reversed count 2 and struck references to the oneyear prison term enhancements from the abstract of judgment

since they were not imposed by the court.

1 All further statutory references are to the Penal Code, 

unless otherwise indicated. For background we summarize in 

part from our opinion in People v. Irvin (Oct. 29, 2014, B252665) 

(nonpub. opn.).
3

After remand a new abstract of judgment was filed on 

October 19, 2017, reflecting only the previously imposed 13-year 

sentence on count 3.

In 2018, in Los Angeles County Superior Court case No. 

VA095294, defendant applied to have a conviction under Health 

and Safety Code section 11377, subdivision (a) (possession of a 

controlled substance) reduced to a misdemeanor under Penal 

Code section 1170.18, subdivision (g) (Proposition 47). On 

April 6, 2018, the trial court granted the application and ordered 

defendant to be released from parole. In April 2020, defendant 

filed a motion for his sentence to be modified by striking all prior 

prison term enhancements pursuant to section 667.5, as amended 

effective January 1, 2020, and by striking the five-year recidivist 

enhancement pursuant to sections 1385 and 667, subdivision 

(a)(1), as amended by Senate Bill No. 1393 (2017-2018 Reg. 

Sess.), effective January 1, 2019.

The motion was denied on May 13, 2020. The trial court 

determined that defendant’s judgment had become final prior to 

January 1, 2019. In addition the court ruled that if it had the 

discretion to dismiss the prior conviction it would not do so 

because of defendant’s record and his conduct in this case.

Defendant filed a timely notice of appeal from the trial 

court’s order.
4

DISCUSSION

In his supplemental brief defendant withdraws his 

challenge to the one-year prior prison term enhancements but

contends that the trial court erred in denying his motion to strike 

the five-year recidivist enhancement without an evidentiary 

hearing, because his conviction for possession of a controlled 

substance was reduced to a misdemeanor under Proposition 47.

Proposition 47 expressly provides that it is not “intended to 

diminish or abrogate the finality of judgments in any case not 

falling within within the purview of this act.” (§ 1170.18, subd. 

(n).) “[A] successful Proposition 47 petitioner may subsequently 

challenge . . . any felony-based enhancement that is based on that 

previously designated felony, now reduced to misdemeanor, [only] 

so long as the judgment containing the enhancement was not 

final when Proposition 47 took effect.” (People v. Buycks (2018) 5 

Cal.5th 857, 879.) “A judgment becomes final when the 

availability of an appeal and the time for filing a petition for 

certiorari with the United States Supreme Court have expired.” 

(Id. at p. 876, fn. 5.) The California Supreme Court denied 

review of the judgment in People v. Irvin, supra, B252665, on 

January 14, 2015 (S222586), and the remittitur was filed 

February 2, 2015. That judgment was thus not final when 
5

Proposition 47 took effect on November 5, 2014.

2 However, 

Senate Bill No. 1393 (2017-2018 Reg. Sess.) was not in effect 

until January 1, 2019, after defendant’s 2013 conviction was 

final. The amendments enacted by Senate Bill No. 1393 apply 

retroactively only to cases that were not final at the time it 

became effective. (People v. Garcia (2018) 28 Cal.App.5th 961, 

971-973.)

Regardless, defendant has not shown that the five-year 

enhancement was based on defendant’s violation of Health and 

Safety Code section 11377. Nor could it have been as that offense 

is not a violent felony as defined in Penal Code section 667.5 or a 

serious felony as defined in subdivision (c) of section 1192.7, a 

prerequisite to the imposition of the enhancement. (§ 667, subd. 

(d)(1).) At defendant’s 2013 sentencing hearing the prosecutor 

indicated that the prior convictions admitted by defendant were a 

2008 violation of section 422 (criminal threats) and a 2004 

violation of section 245, subdivision (a)(1) (assault with a deadly 

weapon).3 Both offenses are serious felonies, which made 

2 The federal district court denied defendant’s petition for 

writ of habeas corpus in 2017. (Irvin v. Warden (C.D.Cal., Mar.

20, 2017, No. 2:16-CV-02463.)

3 The appellate record does not include the information or a 

transcript or minute order of defendant’s admissions to prior 

convictions. The preconviction probation report is part of the 

record and it shows the two prior convictions.
6

defendant eligible for the five-year recidivist enhancement. 

(§ 1192.7 subds. (23) & (38); see § 667, subd. (a)(1).)

We conclude that the trial court did not err in denying 

defendant’s motion to strike the five-year enhancement from the 

2013 judgment.

Defendant also requests remand to the trial court to 

consider an early release due to his medical condition and 

increased risk of contracting COVID-19. As defendant has not 

shown that a request for compassionate release was “properly 

initiated by prison or parole authorities” pursuant to section 

1170, subdivision (e), or that his appeal is taken from an order of 

the trial court denying such a request (see People v. Loper (2015) 

60 Cal.4th 1155, 1158), we cannot assist.

DISPOSITION

The order denying defendant’s motion to strike 

enhancements is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________________________________________

LUI, P. J. CHAVEZ, J. HOFFSTADT, J.