The People v. Padilla CA6 ( 2013 )

Filed 8/29/13 P. v. Padilla CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039216
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 175952)
v.
LARRY PADILLA,
Defendant and Appellant.
In 1994, appellant Larry Padilla was convicted of first degree burglary (Pen. Code
§§ 459, 460, subd. (a)), with at least two prior “strike” convictions. (Pen. Code §§ 667,
subds. (b)-(i), 1170.12.) He was sentenced to serve 35 years to life in prison. (People v.
Padilla (May 18, 1998, H016463) [nonpub. opn.].)1 On appeal in 1996, this court
remanded the matter for resentencing. (Ibid.) On remand, the trial court imposed the
same sentence. (Ibid.) Appellant appealed again, and in 1998, this court affirmed the
judgment. (Id. at p. 2.) On December 13, 2012, appellant filed a petition for recall of
sentence under the Three Strikes Law Reform Act (the Act) and Penal Code section
1170.126. On December 18, 2012, the trial court denied the petition, finding the
defendant ineligible for resentencing under the provisions of the Act. Defendant filed a
timely notice of appeal from this order.
1
On appellant’s motion, this court takes judicial notice of its opinion in the prior
appeal, People v. Padilla, case no. H016463.
On appeal, we appointed counsel to represent defendant in this court. Appointed
counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende), and People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano).) The opening
brief states the case and the facts but raises no specific issues. Wende review is only
available in a first appeal of right. (Serrano, supra, 211 Cal.App.4th at p. 501.) Because
appellant’s appeal is from an order after judgment, and not a first appeal of right, he is
not entitled to Wende review. (Ibid.) Therefore, we will proceed with this appeal
pursuant to the standard we enunciated in Serrano.
Pursuant to Serrano, on April 9, 2013, we notified appellant of his right to submit
written argument in his own behalf within 30 days. On May 2, 2013, and May 7, 2013,
we received letters from appellant. In his letters, appellant contends that the court should
reconsider his sentence based on his advanced age, the insignificant value of the items
taken, and his intoxication at the time of the crime. He further claims that his model
behavior during his incarceration as well as his reform and rehabilitation should be taken
into consideration by this court. Nothing in appellant’s letter suggests that there is an
arguable issue on appeal from the order denying his petition for modification of the
sentence. Therefore, we decline to retain the appeal.
The appellant having failed to raise any arguable issue on appeal, we dismiss the
appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
_________________________
MÁRQUEZ, J.
WE CONCUR:
_________________________
RUSHING, P.J.
_________________________
ELIA, J.