P. v. Howe

 

 

 

 

 

 

Filed 8/27/13  P. v. Howe CA2/6

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX

 

 
>

THE PEOPLE,       Plaintiff and Respondent,   v.   JAMES CLAYTON HOWE,       Defendant and Appellant.

2d Crim. No. B248142 (Super. Ct. No. F281349) (San Luis Obispo County)

 

                        James Clayton Howe
appeals from the order denying his petition to recall his 25 year-to-life sentence
pursuant to the procedures set forth under Penal Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 1170.126, added by Proposition 36, the Three Strikes Reform Act of
2012.

                        We appointed href="http://www.fearnotlaw.com/">counsel to represent appellant in this
appeal.  After counsel's examination of
the record, he filed an opening brief in which no issues were raised.

                        We advised appellant
that he had 30 days within which to personally submit any contentions or issues
he wished us to consider.  Appellant
filed a supplemental letter brief which seeks a more favorable sentence. 

                        In 1999, appellant was
convicted of assault with a deadly weapon
or by means of force likely to produce great bodily injury (§ 245, subd.
(a)(1)) and resisting an executive officer (§ 69).  The trial court found true allegations of
four prior “strikes” under the Three Strikes law, and sentenced him to two
concurrent prison terms of 25 years to life. 
(On our own motion, we take judicial notice of People v. Howe (March 28,
2001, B139592 [nonpub. opn.]) pursuant to Evidence Code sections
459, subdivision (a) and 452, subdivision (d).) 


                        On November 21, 2012, appellant filed a petition to
recall his sentence pursuant to section 1170.126.  The trial court denied his petition after
hearing on February 28, 2013.  In 1979, appellant was convicted of two
forcible rapes and oral copulation.  In
1989, he was convicted of assault with intent to commit rape and sexual
battery.  (Howe, supra, B139592, at
p. 9.)  Those offenses make him
ineligible for resentencing under section 1170.126, subdivision (e)(3).href="#_ftn2" name="_ftnref2" title="">[2]

                        We have read and
considered appellant’s letter brief, his petition for recall of sentence and
other materials from the trial court.  We
are satisfied that appellant's attorney has fully complied with his
responsibilities and that no arguable
issues exist.  (People v. Wende (1979) 25 Cal.3d 436, 443; People v. Kelly (2006) 40 Cal.4th 106, 125 126.)

                        The judgment is
affirmed.

                        NOT TO BE PUBLISHED.

 

 

 

 

                                                                        PERREN,
J.

 

 

We concur:

 

 

 

                        GILBERT, P.J.

 

 

 

                        YEGAN, J.



Barry
T. LaBarbera, Judge

 

Superior
Court County
of  San Luis Obispo

______________________________

 

                        Richard B. Lennon, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        No appearance for
Plaintiff and Respondent.