People v. Nelson CA2/3 ( 2015 )

Filed 4/6/15 P. v. Nelson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE, B259291
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA242628)
v.
RANDELL CEDRIC NELSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_____________________
Defendant and appellant Randell Cedric Nelson appeals the trial court’s denial of
his motion for recall and sentencing pursuant to Proposition 36, the Three Strikes Reform
Act of 2012. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, a jury convicted Nelson of child custody deprivation (count 5, Pen. Code,
§ 278.5, subd. (a))1 and possession of a firearm by a felon (count 8, former § 12021,
subd. (a)(1).) The jury also found Nelson had suffered convictions for two counts of
robbery (§ 211) in case No. BA016123 in September 1990. (§§ 667, subds. (a), (b)-(i),
1170.12, subds. (a)-(d), 667.5, subd. (b).) It found the allegation that Nelson personally
used a firearm in commission of count 5 not true. After the jury’s verdict, Nelson
pleaded guilty to kidnapping (count 4, § 207, subd. (a)) and admitted a serious felony
conviction allegation. In exchange, the remaining counts were dismissed. Nelson was
sentenced to a term of 55 years to life in prison, configured as follows. On count 4, the
base count, the court imposed a term of 25 years to life pursuant to the “Three Strikes”
law, plus a section 667, subdivision (a)(1) five-year serious felony enhancement. On
count 5, deprivation of child custody, the court imposed a term of 25 years to life
pursuant to the Three Strikes law, stayed pursuant to section 654. On count 8, felon in
possession of a firearm, the court imposed a consecutive term of 25 years to life pursuant
to the Three Strikes law. We affirmed the judgment. (People v. Nelson (Jan. 26, 2005,
B170802) [nonpub. opn.].)
On June 11, 2014, Nelson petitioned for recall of his sentence and resentencing
pursuant to Proposition 36, section 1170.126. The superior court appointed counsel for
Nelson and issued an order to show cause (OSC) why the requested relief should not be
granted. The People opposed the petition, arguing Nelson was statutorily ineligible for
resentencing because (1) kidnapping is both a serious and a violent felony within the
meaning of sections 1192.7, subdivision (c)(20) and 667.5, subdivision (c)(14);
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All further undesignated statutory references are to the Penal Code.
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(2) Nelson used and/or was armed with a firearm during commission of the offenses;
(3) Nelson intended to cause great bodily injury during commission of the offenses; and
(4) Nelson’s release would pose an unreasonable risk of danger to public safety. The
superior court invited Nelson to file a responsive pleading. On August 29, 2014, the
court denied the petition on the ground that because one of Nelson’s current convictions
was for kidnapping, a violent felony, he was statutorily ineligible for resentencing.
(§ 1170.126, subd. (e)(2)). It vacated the OSC as improvidently granted. Nelson filed a
timely notice of appeal on September 24, 2014.
DISCUSSION
After review of the record, appellant’s court-appointed counsel filed an opening
brief which raised no issues, and requested this court to conduct an independent review of
the record pursuant to People v. Wende (1979) 25 Cal. 3d 436, 441. On December 22,
2014, we advised appellant that he had 30 days to submit by brief or letter any
contentions or argument he wished this court to consider. No response has been received
to date.
The superior court’s ruling was correct. Nelson is not eligible for resentencing on
count 4 because kidnapping is both a serious and a violent felony (§§ 667.5, subd.
(c)(14), 1192.7, subd. (c)(20)). Nelson is ineligible for resentencing on counts 5 and 8
because he was armed with a firearm during both offenses. (See §§ 1170.126,
subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii); People v. Guilford
(2014) 228 Cal. App. 4th 651, 661, 657-661; People v. Bradford (2014) 227 Cal. App. 4th
1322, 1331; People v. White (2014) 223 Cal. App. 4th 512, 527.)
We have examined the entire record and are satisfied appellant’s attorney has fully
complied with the responsibilities of counsel and no arguable issues exist. (People v.
Kelly (2006) 40 Cal. 4th 106, 126; People v. Wende, supra, 25 Cal.3d at p. 441.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
KITCHING, J.
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