P. v. Carrell
Filed 11/6/13 P. v. Carrell CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
JERRY DONNELL CARRELL,
Defendant
and Appellant.
B249690
(Los
Angeles County
Super. Ct.
No. YA031380)
APPEAL from an order of the Superior
Court of
County,
William
C. Ryan, Judge. Affirmed.
California Appellate Project,
Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
On
May 1, 2013, defendant and
appellant, Jerry Donnell Carrell, filed in the Los Angeles Superior Court a
petition for writ of habeas corpus in
which he argued the trial court had erred by denying the petition with
prejudice based on the fact Carrell did not qualify for recall of his sentence and
resentencing pursuant to Penal Code
name="_ftnref1" title="">[1]
section 1170.126. We affirm the trial court’s order.
Following
a jury trial held in December 1996, Carrell was found guilty of possessing .70
grams of a substance containing cocaine base in violation of Health and Safety
Code section 11350, subdivision (a). Carrell
then admitted previously having been convicted of three felonies within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)). The unpublished appellate
opinion filed in this matter, People v.
Carrell (June 2, 1998, B115946),
indicates Carrell admitted having a 1987 conviction of forcibly committing a
lewd or lascivious act upon a child under the age of 14 years (§ 288,
subd. (b)), a 1983 conviction for robbery (§ 211) and a 1978 conviction for
rape (former § 261.2).
The opinion notes
that the probation report filed in this matter indicated Carrell previously had
been convicted of another count of committing a lewd or lascivious act upon a
child under 14 years of age (§ 288, subd. (b)), two counts of assault with a
deadly weapon (§ 245, subd. (a)(1)), two counts of rape in violation of former
section 261.2 and a second count of robbery (§ 211). (People
v. Carrell, supra, B115946.) More recently, Carrell had suffered a 1993
conviction for trespassing, a 1994 conviction for battery and a 1995 conviction
for contempt of court by “violating a domestic court order preventing domestic
violence.†(Ibid.) Then, in September
1996, Carrell was arrested for possessing a controlled substance. He was granted diversion in that matter and
was on probation in the case when he committed the present offense. The probation report continued, indicating
that “ ‘[i]f convicted as charged, [Carrell] is ineligible for probation. This ineligibility is due to convictions
[Carrell] incurred over 10 years ago.
His prior arrests were for extremely serious, violent crimes for which
he was sentenced to state prison. Over
the past four years he has incurred a number of arrests which indicate he may
be resuming his previous pattern of criminal activity.’ †(Ibid.)
Before sentencing
Carrell for his conviction of possession of cocaine base and his admission he
had been convicted of three prior strikes, the trial court reviewed Carrell’s pre-conviction
probation report. The trial court noted,
although his more recent crimes had not been as serious or violent as his prior
offenses of rape and robbery, Carrell was nevertheless “ ‘doing drugs,’ â€
committing “ ‘petty theft [and] battery’ †and “ ‘not showing up to court.’ †(People
v. Carrell, supra, B115946.) Under these circumstances, the trial court
declined to strike any of Carrell’s prior convictions pursuant to section 1385
and sentenced Carrell to 25 years to life in prison. The trial court then imposed, with regard to
another case, a sentence of one year four months, the term to run consecutively
to that imposed in the present matter.
In total, the trial court sentenced Carrell to 26 years four months to
life in prison.
Carrell filed a
timely notice of appeal. On June 2,
1998, this court affirmed the judgment.
The court concluded that, based upon his history, the imposition of a 25
years to life sentence in the present case “did not constitute cruel or unusual
punishment. [Citations.]†(People
v. Carrell, supra, B115946.)
On July 6, 1998,
Carrell filed a petition for review of the judgment in the California Supreme
Court. He again argued that imposition
of a 25-years-to-life sentence in this matter amounted to cruel and unusual
punishment and violated the Eighth Amendment of the
States Constitution. The Supreme Court
denied the petition on August 12, 1998, in case No. S071635.
Carrell filed a petition
for writ of habeas corpus in the Los Angeles Superior Court on May 1,
2013. Although in his petition Carrell
asserted the sentence imposed in his case amounted to cruel and unusual
punishment and violated principles of equal protection of the law and double
jeopardy, his primary argument was that the trial court erred by failing to
recall his sentence, then placing him in a drug treatment program pursuant to
the provisions of Proposition 36. Carrell
asserted that, under the provisions of section 1210.1, subdivision (a), he
should have been granted probation.
name="_ftnref5" title="">[5] However, subdivision (b) of section 1210.1
provides that “[s]ubdivision (a) shall not apply to either of the following: [¶] (1) Any defendant who previously has been
convicted of one or more violent or serious felonies as defined in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless
the nonviolent drug possession offense occurred after a period of five years in
which the defendant remained free of both prison custody and the commission of
an offense that result[ed] in a felony conviction other than a nonviolent drug
possession offense, or a misdemeanor conviction involving physical injury or
the threat of physical injury to another person.†Here, the opinion notes that the probation
report filed in this matter indicates Carrell suffered a 1994 conviction for
battery
and a 1995 conviction for contempt of court by “violating a domestic court
order preventing domestic violence.†(
The superior court
addressed Carrell’s petition in a Memorandum of Decision filed on May 22, 2013. After indicating it had read and considered
Carrell’s petition, the court denied it with prejudice by relying on section
1170.126.
“suffered a prior conviction of [forcibly committing a lewd or lascivious act
upon a child under the age of 14 years in violation of] . . . section 288[,
subdivision] (b), which appears [to be] a disqualifying offense in . . .
section 667[, subdivision] (e)(2)(C)(iv)(III), . . . [Carrell was] ineligible
for resentencing under . . . section 1170.126[, subdivision (e)(3)].â€
Carrell filed a
timely notice of appeal from the trial court’s order on June 20, 2013.
After examination of the
record, appointed appellate counsel filed an
requested this court to conduct an independent review of the record.
By notice filed August
23, 2013, the clerk of this court advised Carrell to submit within 30 days any
contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received
to date.
We have examined
the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith
v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
The trial court’s
order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
J.
We concur:
KLEIN, P. J. KITCHING,
J.
further statutory references are to the Penal Code unless otherwise indicated.
consider the matter as an appeal from an “order made after judgment, affecting
the substantial rights of the party.†(§
1237, subd. (b).)
