The People v. Strickland CA4/2 ( 2013 )

Filed 8/28/13 P. v. Strickland CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058868
v. (Super.Ct.No. FWV05410)
ROBERT STRICKLAND, JR., OPINION
Defendant and Appellant.
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.
1
Defendant Robert Strickland, Jr., appeals from an order denying his petition for
recall of his indeterminate life term, under Penal Code section 1170.126, subdivision (f).1
We will affirm the order.
BACKGROUND2
Defendant was convicted in 1995 in San Bernardino County case No. FWV05410
of one count of second degree robbery (§ 211) and two counts of attempted second
degree robbery (§§ 211, 664). A personal gun use allegation was found true as to each
count. (§ 12022.5, subd. (a).) Two strike prior allegations were found true (§ 667, subds.
(b)–(i)), as was a prior serious felony allegation (§ 667, subd. (a)(1)). On remand,
following defendant’s appeal in that case, the court sentenced defendant to a total
indeterminate term of 89 years to life.3
1 All further statutory citations refer to the Penal Code.
2 The underlying facts are not material to the issue we consider in this appeal.
3 The record in the current case does not reflect that either the jury or the court
found the strike prior allegations true. Pursuant to Evidence Code section 459,
subdivision (d), we take judicial notice of the unpublished opinion in defendant’s prior
appeal, which states that the court made that finding. (People v. Strickland (Sept. 25,
1996, E016368) [nonpub. opn.].)
The record in this case shows that defendant was convicted on May 15, 1995, but
not sentenced until January 23, 1998. In defendant’s appeal from his conviction, we
vacated his sentence and remanded the matter for resentencing. (People v. Strickland,
E016368, supra.) Defendant’s sentence was affirmed in his appeal following
resentencing. (People v. Strickland (Dec. 10, 1998, E022304 [nonpub. opn.].)
2
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.”
On February 10, 2013, defendant filed a petition for modification of his sentence
pursuant to Proposition 36.
On May 6, 2013, the court denied the petition, finding that defendant’s current
offenses are both serious felonies and that the jury found true that defendant had
personally used a firearm.
Defendant filed a timely notice of appeal.
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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.) Defendant
filed a supplemental brief, which we have considered.
We have independently examined the record and have found no arguable issues.
Robbery is a violent felony. (§ 667.5, subd. (c)(9).) Robbery and attempted robbery with
the personal use of a firearm are serious felonies. (§ 1192.7, subd. (c)(8).) 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 arguable issues exist. (People 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
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
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