Filed 10/5/20 P. v. Floyd CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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This opinion has not been certified for publication or ordered published for purposes of 

rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

SYLVESTER FLOYD,

Defendant and Appellant.

 B306167

 (Los Angeles County

 Super. Ct. No. YA051229)

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.

________________________________
2

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.
3

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) 

[nonpub. opn.].)

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) 

[nonpub. opn.].)

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 

Strikes law.

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) 211 Cal.App.4th 496, 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 
4

benefit of section 1016.8 and, on that basis, the court should 

vacate his plea bargains and resentence him. 

DISCUSSION

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. 

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, 

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, 
5

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. Barton, supra, 52

Cal.App.5th at p. 1153), Floyd’s judgment has long been final. 

Nothing in section 1016.8 authorizes a collateral attack on a 

final judgment.

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. 

Gipson (2004) 117 Cal.App.4th 1065, 1068–1070; People v. 

Sipe (1995) 36 Cal.App.4th 468, 476–479; see also Doe v. Harris

(2013) 57 Cal.4th 64, 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 

Floyd’s motion.

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 
6

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 Floyd’s counsel has fulfilled his 

responsibilities (see People v. Cole (2020) 52 Cal.App.5th 

1023, 1038, petn. for review pending, petn. filed Sept. 4, 2020, 

S264278) and conclude that the appeal raises no arguable 

issues.

DISPOSITION

The trial court’s May 4, 2020 order is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.