P. v.
Filed 6/25/13 P. v. Hidalgo CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE RENE HIDALGO,
Defendant and Appellant.
G047998
(Super. Ct. No. 95CF0222)
O P I N I O N
Appeal from an order of
the Superior Court
of
County, Craig E. Robison, Judge. Affirmed.
John L. Dodd, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
* * *
Introduction
Defendant Jose Rene
Hidalgo appeals from the order denying his petition to recall his 35‑year‑to‑life
sentence pursuant to the procedures set forth under Penal Code section
1170.126, added by Proposition 36, the Three Strikes Reform Act of 2012. (All further statutory references are to the
Penal Code unless otherwise specified.)
We appointed counsel to represent
Hidalgo on appeal. Appointed appellate counsel filed a brief
pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende), setting forth the
facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S.
738 (Anders), appointed appellate
counsel suggests we consider whether Hidalgo’s
petition was properly denied. This court
provided Hidalgo 30 days to file written argument on his own behalf. The 30‑day time period has passed, and Hidalgo
has not filed anything on his own behalf.
We
have examined the entire record and appointed appellate counsel’s
issue. (Wende, supra, 25 Cal.3d
436.) We therefore affirm.
Background
In 1995, a jury found
Hidalgo guilty of committing one count each of
of sections 459, 460, subdivision (a), and 461.1; petty theft with a
prior conviction in violation of sections 666 and 484,
subdivision (a) through 488; and unlawful driving or taking of a vehicle
in violation of Vehicle Code section 10851, subdivision (a). The trial court found Hidalgo
suffered three prior serious felonies within the meaning of section 667,
subdivision (a)(1). The court
imposed a total prison term of 90 years to life, by imposing a 25‑year‑to‑life
term for each of Hidalgo’s three
offenses, plus a consecutive term of 15 years for prior conviction
enhancements.
A panel of this court
affirmed Hidalgo’s judgment of conviction, but reversed the sentence and
remanded the case for resentencing with directions that the trial court exercise
its discretion in determining whether it should strike Hidalgo’s prior
convictions for purposes of sentencing pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497.
name="_ftnref1" title="">[1] On remand, the trial court reduced Hidalgo’s
prison sentence to a total term of 35 years to life, by imposing a 25‑year‑to‑life
term for the first degree burglary offense and ordering that the sentences
imposed for the petty theft with a prior conviction and the unlawful driving or
taking of a vehicle offenses (a two‑year term each) run concurrently with
the term imposed for the first degree burglary offense. The court also struck one of the prior
conviction enhancements for purposes of sentencing.
On November 14, 2012, Hidalgo
filed a petition for recall of sentence pursuant to section 1170.126,
subdivision (b). The trial court
denied his petition. Hidalgo
appealed.
Discussion
In People v. Hurtado, supra,
216 Cal.App.4th at page 944, the appellate court recently explained: “Proposition 36, also known as the Three Strikes
Reform Act of 2012, was approved by the voters on November 6, 2012, and went into effect the next
day. It amended sections 667 and
1170.12 so that an indeterminate term of 25 years to life in prison is applied
only where the ‘third strike’ offense is a serious or violent felony or the
prosecution pleads and proves an enumerated factor. (§§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C).) [¶] Proposition 36
also created section 1170.126, which provides a procedure for resentencing
‘persons presently serving an indeterminate term of imprisonment’ under the
Three Strikes law ‘whose sentence under this act would not have been an
indeterminate life sentence.’
(§ 1170.126, subd. (a).)
Such a person may file a petition to recall his or her sentence and be
sentenced as a second strike offender.
(§ 1170.126, subd. (b).)
An inmate is eligible for such
resentencing if none of his or her commitment offenses constitute serious or
violent felonies and none of the enumerated factors disqualifying a
defendant for resentencing under Proposition 36 apply. (§ 1170.126,
subd. (e).) Resentencing of
eligible inmates may nonetheless be refused if the trial court, ‘in its
discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’
(§ 1170.126, subd. (f).)
Subdivision (g) of section 1170.126 sets forth several factors
that a trial court may consider in exercising that discretion.†(Italics added.)
Here, Hidalgo’s
commitment offenses included a conviction for first degree burglary, which is a
serious felony under section 1192.7, subdivision (c)(18). Hidalgo was therefore not eligible for
resentencing under section 1170.126, subdivisions (b) and (e). We find no error.
Disposition
The order is affirmed.
FYBEL,
ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
title="">[1] Pursuant to Evidence Code sections 459,
subdivision (a) and 452, subdivision (d), on our own motion, we take
judicial notice of People v. Hidalgo (June 17,
1997, G018573) (nonpub. opn.).
An order denying a petition to recall a
sentence under section 1170.126 is appealable. (People
v. Hurtado (2013) 216 Cal.App.4th 941, 944‑945.)
