Filed 1/22/20 P. v. Simpson CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

EDDIE S. SIMPSON,

Defendant and Appellant. B300335

(Los Angeles County

Super. Ct. No. MA071762)

APPEAL from an order of the Superior Court of Los Angeles County, Lisa M. Chung, Judge. Affirmed.

Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

__________________________

Defendant Eddie S. Simpson was convicted by jury of attempted robbery of the first degree. He admitted a prior residential burglary conviction. The court sentenced him to nine years in prison, a term that included a then-mandatory five-year enhancement for the prior serious felony conviction.

Effective January 1, 2019, as a result of the enactment of Senate Bill No. 1393, the prohibition against striking a prior serious felony enhancement was eliminated, giving the court discretion to strike a prior serious felony in the interest of justice. (Pen. Code, §§ 667, 1385, as amended by Stats. 2018, ch. 1013, §§ 1 & 2.)

On January 28, 2019, this court affirmed defendant’s judgment of conviction, but remanded the cause for the limited purpose of allowing the trial court to exercise its discretion to impose or strike the prior serious felony enhancement and, if appropriate following exercise of that discretion, resentencing defendant accordingly.

The trial court (the same judge who conducted defendant’s jury trial) held a hearing on July 12, 2019. The court observed that it independently recalled the trial, and had re-reviewed the probation report and other documents.

After considering the arguments of defense counsel and the prosecutor, the trial court recited the aggravating factors of the crime and defendant’s prior record, and observed it had sentenced defendant to the midterm, not the high term. The court declined to exercise its discretion to strike the prior and modify the sentence.

Defendant filed a timely appeal.

Defendant’s appointed counsel filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436) requesting our independent review of the record. A declaration from counsel stated that she reviewed the record, wrote to defendant explaining her evaluation and intent to file a Wende brief, and his right to file a supplemental brief and to request that she be relieved as counsel. Counsel also sent a copy of the Wende brief and the record on appeal to defendant.

Defendant filed a supplemental brief. His only contention is, in substance, that the evidence at trial proved his innocence, and if the facts “were brought back up and recorded again,” then the trial judge may have struck the enhancement. The law does not permit us to revisit the facts underlying defendant’s current conviction, which we have affirmed. The only issue is whether the trial court abused its discretion in refusing to strike the enhancement for defendant’s prior serious felony conviction.

We have reviewed the record on appeal. The record clearly shows a proper exercise of the trial court’s discretion.

In short, we are satisfied that defendant’s appointed counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The order is affirmed.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

STRATTON, J.