P. v. Holloway
Filed 1/7/14 P. v. Holloway
CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
PERVIS
HOLLOWAY,
Defendant and Appellant.
B248989
(Los
Angeles County
Super. Ct. No.
TA031000)
APPEAL
from an order of the Superior Court of Los
Angeles, William C. Ryan, Judge.
Affirmed.
Nancy
Gaynor, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
_____________________
Pervis Holloway appeals from an
order denying his motion to recall his
sentence under the Three Strikes Reform Act of 2012, added by Proposition 36. (Pen. Code, § 1170.126.)
independently review the record. (
441.) On October 18, 2013, we sent letters to appellant and appointed counsel, directing
counsel to immediately forward the appellate record and a copy of the
that he had 30 days within which to personally submit any contentions or issues
he wished us to consider. To date, appellant
has not responded.
In
1999, appellant was resentenced for a conviction of possession of firearm by a
felon under section 12021, subdivision (a)(1), having originally been sentenced
in 1995. Because appellant had two prior
serious convictions, he was sentenced to an indeterminate life term under the “Three
Strikes†law. (§§ 667, 1170.12.)
In
November 2012, the voters of this state enacted Proposition 36, which amended the
Three Strikes law to limit sentences to current convictions for serious or
violent felonies and a limited number of other felonies, unless the offender
has a prior strike conviction that falls within one of several enumerated
categories. (§§ 667, 1170.12.) The amended
for qualified inmates serving indeterminate life sentences under the Three
Strikes law to seek resentencing under the terms of the amended law. (§ 1170.126.)
On
January 8, 2013, appellant petitioned for relief under this provision, seeking
recall of his sentence and resentencing to a determinate term sentence. In his petition, appellant argued that his
current sentence is not for one of the offenses listed in sections 667 or
1170.12 and is neither serious nor violent.
He also argued that his prior convictions, while for sex offenses, do
not fall within the enumerated category of “‘sexually violent offense’ as
defined by subdivision (b) of Section 6600 of the Welfare and Institutionsâ€
Code because the Welfare and Institutions
Code applies solely to juvenile court law and minor victims, and
appellant’s victim was 31 years old and appellant was 29 years old at the time.
In addition, he contended that in his
prior conviction, the jury found no force, weapon or fear. Finally, appellant argued that “to deny
re-sentencing for any reason is a violation of [appellant’s] state and fedreal
[sic] equal protection and due process rights.â€
On
March 14, 2013, the trial court, without hearing, determined that appellant was
not eligible for recall and resentencing because he suffered a prior conviction
under section 667(e)(2)(C)(iv)(I) and denied appellant’s petition.
On
May 6, 2013, appellant filed a timely notice of appeal.
Courts
of Appeal are split on the issue of whether a person who is found to be
ineligible for resentencing under section 1170.26 may appeal from an order
denying a petition to recall a sentence, and the Supreme Court has granted
review to consider the appealability of such an order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308 [158 Cal.Rptr.3d
446], review granted July 31, 2013, S211708;
941 [157 Cal.Rptr.3d 315], review granted July 31, 2013,
S212017; People v. Leggett (2013) 219
Cal.App.4th 846 [162 Cal.Rptr.3d 205], review granted Dec. 18, 2013, S214264.)
We have examined
the entire record and have found that no arguable issues of any sort exist. Appellant is not eligible for resentencing
under section 1170.126, subdivision (e)(3) because his current indeterminate
life sentence is based on his prior disqualifying convictions under section
667(e)(2)(C)(iv)(I).
Section
667(e)(2)(C)(iv)(I) provides: “If a
defendant has two or more prior serious and/or violent felony convictions as
defined . . . that have been pled and proved, and the current offense is not a
serious or violent felony as defined in subdivision (d), the defendant shall be
sentenced pursuant to paragraph (1) of subdivision (e) unless the prosecution pleads and proves any of the following: [¶]
. . . [¶] (iv) The defendant suffered a
prior serious and/or violent felony conviction, as defined in subdivision (d)
of this section, for any of the following felonies: [¶] (I)
subdivision (b) of Section 6600 of the Welfare and Institutions Code. . . .â€
(Italics added.)
Welfare and Institutions
Code section 6600, subdivision (b), in turn, provides: “(b) ‘Sexually violent offense’ means the
following acts when committed by force, violence, duress, menace, fear of
immediate and unlawful bodily injury on the victim . . . : a felony violation of Section 261, . . . [or]
288a . . . of the Penal Code.†Here, the
abstract of judgment from appellant’s 1987 convictions shows that he was
convicted of a violation of section 261, subdivision (2), for “forcible rapeâ€
and section 288a, subdivision (c), for “forcible oral copulation.†Thus, the trial court properly deemed
appellant to be ineligible for a recall of sentence and resentencing.
Appellant is
incorrect in asserting that Welfare and Institutions Code generally and section
6600 applies only to juvenile court cases or where the victim is a minor. To the extent appellant contends that denial
of “re-sentencing for any reason†violates state and federal equal protection
and due process rights, appellant cites no case for this proposition and we do
not find it to be an arguable issue.
We are satisfied
that appellant’s appointed counsel has fully complied with her responsibilities
and that no arguable issues exist. (
109-110; People v. Wende,
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY,
J.
We concur:
ROTHSCHILD, Acting P. J.
JOHNSON, J.
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Statutory references are to the Penal Code unless otherwise indicated.
