P. v. French
Filed 1/8/14 P. v. French
CA4/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
THE STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LEROY FRENCH,
III,
Defendant and Appellant.
E059381
(Super.Ct.No. FSB12597)
OPINION
APPEAL from the
(Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Anna
M. Jauregui-Law, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and
appellant Leroy French, III, appeals after the
resentencing under the Three Strikes Reform Act of 2012 (the Reform Act). We affirm.
FACTS AND PROCEDURAL HISTORY
In 1996, defendant
was charged with grand theft (Pen. Code, § 487, subd. (a)) and receiving
stolen property (Pen. Code, § 496, subd. (a)). The charging pleading also alleged that
defendant had suffered two prior strike convictions (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), for robbery (Pen. Code, § 211)
and second degree murder (Pen. Code, § 187).
Defendant pleaded
guilty to the two new charges of grand theft and receiving stolen property, and
admitted the strike priors. Later, the
receiving stolen property conviction was dismissed, and the
that change, but defendant remained sentenced to 25 years to life as a third
striker.
In November 2012,
the voters passed the Reform Act, which provides that, with certain exceptions,
a three strikes term of 25 years to life may be imposed only if the defendant’s
current offense is a serious or violent felony.
For those persons serving previously imposed sentences, Penal Code section
1170.126 establishes a statutory procedure to seek resentencing. Subdivision (b) of the statute establishes
that a person serving an indeterminate term of life imprisonment under the “Three
Strikes†law for a conviction based on “a felony or felonies that are not
defined as serious and/or violent felonies . . . may file a petition
for a recall of the sentence . . . .†Subdivision (d) of the statute requires a
petition for recall of a sentence to specify both (1) the currently charged
felonies that resulted in the current sentence, and (2) the prior strike
convictions that were “alleged and proved†under the
Here, defendant
filed his petition for recall of
sentence on May
20, 2013.
The trial court denied the petition on August 1, 2013, stating: “The Court finds that Petitioner does not
satisfy the criteria in PC1170.12[,] [subdivision] (e) and is not eligible. One of defendant’s strike conviction[s] is
for murder PC187. Defendant is therefore
ineligible for resentencing under PC1170.126 (PC1170.126(e)[(3)][] and
PC667(e)(c)(iv)).â€
Defendant filed a
notice of appeal on August 9, 2013.
ANALYSIS
Upon defendant’s
appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority
of People
v. Wende (1979) 25 Cal.3d 436 and Anders
v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting
forth a brief statement of the case, but making no argument as to any specific
issues. Counsel has requested this court
to undertake a review of the entire record.
Defendant has been offered an opportunity to file a personal
supplemental brief, which he has done.
Pursuant to the
mandate of People v. Kelly (2006) 40
Cal.4th 106, we have conducted an independent review of the entire record and
find no arguable issues.
The sole issue
suggested by appellate counsel is whether the trial court erred in denying
defendant’s petition for recall of his sentence. Penal Code section 1170.126, subdivision (e),
provides in relevant part, that an inmate is eligible for resentencing if: “(3)
The inmate has no prior convictions for any of the offenses appearing in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section
667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c)
of Section 1170.12.†Penal Code section
667, subdivision (e)(2)(C)(iv)(IV) lists “[a]ny homicide offense, including any
attempted homicide offense, defined in Sections 187 to 191.5, inclusive,†as
one of the disqualifying prior offenses.
Penal Code section 1170.12, subdivision (c)(2)(C)(iv)(IV) does the
same. One of defendant’s prior strike
convictions was for second degree murder (Pen. Code, § 187), a
disqualifying strike offense. The trial
court properly determined that defendant was not eligible for resentencing
under the Reform Act.
In his personal
supplemental brief, defendant raises issues with respect to the competence of
his trial attorney at the time he pleaded guilty in 1996. These questions should have been raised on
appeal, or on a timely petition for writ of habeas corpus, after that
conviction; the time has long since passed to raise matters which could, and
should, have been raised then. The sole
matter within the scope of appeal at present is the trial court’s ruling on
defendant’s petition to recall his sentence.
The additional matters defendant raises are not cognizable in this
appeal.
DISPOSITION
Defendant was not
eligible to recall his three strikes sentence.
The order denying his petition is affirmed.
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P. J.
We concur:
RICHLI
J.
MILLER
J.
