P. v. Joshua
Filed 7/23/13 P. v. Joshua CA4/2
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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THE PEOPLE,
Plaintiff
and Respondent,
v.
CURTIS BARNETTE JOSHUA,
Defendant
and Appellant.
E058544
(Super.Ct.No.
FWV027967)
OPINION
APPEAL from the Superior
Court
of
San Bernardino
County. Michael A.
Smith, Judge. (Retired judge of the San
Bernardino Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Curtis Barnette Joshua appeals from an order
denying his petition for recall of his indeterminate life term, under Penal
Code section 1170.126, subdivision (f).
BACKGROUND
Defendant was convicted in 2005 of one count of
criminal threats (Pen. Code, § 422), and one count of evading a peace officer
(Veh. Code, § 2800.2, subd. (a)). Two
strike prior allegations were found true, as were allegations pursuant to Penal
Code sections 667, subdivision (a)(1), and 667.5, subdivision (b).
In June 2005, the court sentenced defendant to 25 years
to life on the first count, stayed a sentenced of 25 years to life on the
second count pursuant to section 654, and imposed a concurrent term of 25 years
to life on the third count. The court
imposed a five-year term for the section 667, subdivision (a)(1) enhancement,
and imposed and struck sentences on the three section 667.5, subdivision (b)
enhancements.
On
November 6, 2012,
the electorate passed Proposition 36, also known as the Three Strikes Reform
Act. Among other things, this ballot
measure enacted section 1170.126, which permits persons currently serving an
indeterminate life term under the three strikes law to file a petition in the
sentencing court, seeking to be resentenced to a determinate term as a
second-striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion,
that the defendant meets the criteria of section 1170.126, subdivision (e), the
court may resentence the defendant. (§
1170.126, subds. (f), (g).) Section
1170.126, subdivision (e)(1) provides, as pertinent here, that a defendant is
eligible for resentencing if he or she is “serving an indeterminate term of
life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of
Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony
or felonies that are not defined as serious and/or violent felonies by
subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.â€
On March
25, 2013, defendant filed a petition for
modification of his sentence pursuant to Proposition 36.
On
April 4, 2013,
the court denied the petition, finding that robbery and criminal threats are
both serious felonies.
Defendant filed a timely
DISCUSSION
We appointed counsel to
represent defendant on appeal. After
examination of the record, counsel filed an opening brief raising no issues and
asking this court to independently review
the record. (People v. Wende (1979) 25 Cal.3d 436.) We offered defendant the opportunity to file
any supplemental brief he deemed necessary, but he did not do so.
We have independently examined
the record and have found no arguable issues.
Robbery is a violent felony. (§
667.5, subd. (c)(9).) Criminal threats
in violation of section 422 is a serious felony. (§ 1192.7, subd. (c)(38).) Accordingly, defendant is not eligible for
resentencing pursuant to section 1170.126, subdivision (f). We are satisfied that defendant’s attorney
has fully complied with her responsibilities and that no
v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra,
25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P.J.
We concur:
RICHLI
J.
KING
J.
Penal Code.
[2] The underlying facts are not material to the
issue we consider in this appeal.
