Filed 2/1/21 P. v. Anderson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

SAMUEL ANDERSON,

Defendant and Appellant.

 B306686

 (Los Angeles County

 Super. Ct. No. BA271932)

APPEAL from an order of the Superior Court of Los Angeles 

County, Renee F. Korn, Judge. Affirmed.

John F. Schuck, under appointment by the Court of Appeal, 

and Samuel Anderson, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

________________________________
2

Samuel Anderson appeals from an order denying a motion 

filed in the trial court seeking a modification of his judgment 

and his release from prison without parole. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

In 2005, a jury found Samuel Anderson guilty of assault 

with a deadly weapon (a knife). (Pen. Code,1 § 245, subd. (a)(1).)

The court found two prior strike allegations to be true and 

sentenced Anderson under the “Three Strikes” law to prison 

for 25 years to life. In 2006, this court affirmed the judgment 

in an unpublished opinion. (People v. Anderson (Apr. 19, 2006, 

B183767).)

On May 8, 2020, Anderson filed a motion in the superior 

court titled, “California Penal Code 1260 Reversal, Affirmance 

or Modification of Judgment.” Anderson requested the court 

to modify his judgment “and release [him] without any parole.” 

In support of his motion he relied on the Public Safety and 

Rehabilitation Act of 2016 (Proposition 57) and section 1016.8.

The court denied the motion, explaining that 

Proposition 57 “only provides an inmate who has completed his

base term with a hearing before the Board of Parole Hearings

(Cal. Const., [art. I, § 32, subd. (a)]). There is no resentencing 

option in the [s]uperior [c]ourt. The documents provided 

by the [d]efendant indicate that the Office of Appeal for the 

Department of Corrections has reviewed the [d]efendant’s file

with him at length. This court declines to take any action at 

this time.”

Anderson filed a timely notice of appeal.

1 Subsequent unspecified statutory references are to the 

Penal Code.
3

We appointed counsel for Anderson, who filed a brief 

raising no issues and requesting that we follow the procedures 

set forth in People v. Serrano (2012) 211 Cal.App.4th 496

(Serrano). Counsel provided Anderson with a copy of the 

record and his brief, and informed Anderson that he had 

the right to file a supplemental brief. Counsel stated that 

he remains available to brief any issues upon our request.

Anderson thereafter filed a petition for writ of habeas 

corpus in this court, which we deemed a supplemental brief for 

purposes of Serrano and People v. Cole (2020) 52 Cal.App.5th 

1023, 1038 (Cole), review granted October 14, 2020, S264278. 

Anderson repeats the arguments he asserted below and adds 

the contention that his counsel on appeal rendered ineffective 

assistance by filing a brief pursuant to Serrano. He requests 

that he “be released from the custody of the Department of 

Corrections and Rehabilitation, ‘immediately,’ without any 

further delay.”

DISCUSSION

Anderson contends that he should be released from prison

without parole pursuant to Proposition 57. Proposition 57 

added section 32 to article I of the California Constitution, and 

provides in part: “Any person convicted of a nonviolent felony 

offense and sentenced to state prison shall be eligible for parole

consideration after completing the full term for his or her 

primary offense.” (Cal. Const., art. I, § 32, subd. (a), par. (1).) 

For such persons sentenced under the Three Strikes law, “the 

full term for his [or her] primary offense” is the maximum term 

the person would have been sentenced for the primary offense 

if “the Three Strikes law alternative sentencing scheme had not 
4

existed at the time of [the defendant’s] sentencing.” (In re 

Edwards (2018) 26 Cal.App.5th 1181, 1192.)

Even if Anderson qualifies for relief under Proposition 57, 

the available relief is eligibility for parole consideration; nothing 

in Proposition 57 or the cases Anderson cites supports his 

requested relief of immediate release from prison. Furthermore, 

as the superior court explained, Proposition 57 does not provide 

for resentencing or modification of his judgment in the superior 

court. The court, therefore, properly denied Anderson’s request 

for relief based on Proposition 57.

Anderson next asserts that the 1977 and 1979 convictions 

the trial court relied on in sentencing him in 2005 under the 

Three Strikes law were based on plea bargains and that, by 

using those convictions to impose a Three Strike sentence, the 

state has breached the agreements. He relies on section 1016.8.

The Legislature enacted section 1016.8 in 2019 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 Court of Appeal decision indicating that such a waiver 

would be enforceable. (People v. Barton (2020) 52 Cal.App.5th 

1145, 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. Barton, supra, at p. 1153.) 

Anderson did not provide the superior court or this court 

with the terms of his plea agreements. Even if they included 
5

the type of waiver that section 1016.8 declares void, the statute 

would not help him because he is not seeking to obtain the 

benefit of changes in any law that postdate his plea bargains. 

Rather, he is seeking to avoid the adverse effect of the Three 

Strikes law as applied to his 2005 convictions. Section 1016.8 

has no application here. 

Lastly, Anderson contends that by filing a brief pursuant 

to Serrano his appellate counsel deprived him of his right to the 

effective assistance of counsel. We disagree. Our review of the 

record and consideration of Anderson’s supplemental brief does 

not disclose any arguable issues on appeal. Anderson has not, 

therefore, been deprived of his right to the effective assistance

of appellate counsel. (See Smith v. Robbins (2000) 528 U.S. 

259, 285–286 [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 Anderson’s counsel has fulfilled his

responsibilities (see People v. Cole, supra, 52 Cal.App.5th at 

p. 1038, review granted Oct. 14, 2020, S264278) and conclude 

that the appeal raises no arguable issues.
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DISPOSITION

The court’s order dated May 8, 2020 is affirmed. 

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.