File ( 2015 )

File 4/16/15 P. v. Marquez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B258532
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA020076)
v.
GILBERT MARQUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
Cheryl Lutz, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_____________________
Following a 1995 jury trial, defendant and appellant, Gilbert Marquez, was found
guilty of second degree burglary (Pen. Code, § 459).1 During trial, Marquez admitted
having suffered prior convictions that made him eligible for sentencing under the “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced
Marquez to a total term of 25 years to life in state prison. (The judgment was affirmed on
appeal in People v. Marquez (Nov. 5, 1996, B094020) [nonpub. opn.]).
On July 29, 2013, acting in propria persona, Marquez filed a “petition for recall
and resentencing pursuant to Proposition 36.”2 On June 26, 2014, the trial court denied
the petition with prejudice on the ground Marquez was ineligible for resentencing
because one of his prior convictions had been for forcible oral copulation (§ 288a).
Marquez timely appealed from the order of denial.3
We appointed counsel to represent defendant on appeal. After reviewing the
record, counsel filed an opening brief requesting this court to independently review the
record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. We directed counsel to
send the record on appeal and a copy of the opening brief to defendant, and notified
defendant he had 30 days within which to personally submit any contentions or issues
that he wished us to consider. Marquez has not filed a supplemental brief.
We have examined the entire record and determined that, as the trial court ruled,
because one of Marquez’s prior convictions was for forcible oral copulation he is not
eligible for a reduction of his sentence under section 1170.126.
As we explained in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th
1279: “On November 6, 2012, voters approved Proposition 36, the Three Strikes Reform
Act of 2012 (the Act). Under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i),
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All further references are to the Penal Code unless otherwise specified.
2
The passage of Proposition 36 resulted in the enactment of section 1170.126.
3
The trial court’s denial of a petition to recall a sentence pursuant to
section 1170.126 is an appealable order under section 1237, subdivision (b). (Teal v.
Superior Court (2014) 60 Cal.4th 595, 598.)
2
1170.12) as it existed prior to Proposition 36, a defendant convicted of two prior serious
or violent felonies would be subject to a sentence of 25 years to life upon conviction of a
third felony. Under the Act, however, a defendant convicted of two prior serious or
violent felonies is subject to the 25-year-to-life sentence only if the third felony is itself a
serious or violent felony. If the third felony is not a serious or violent felony, the
defendant will receive a sentence as though the defendant had only one prior serious or
violent felony conviction, and is therefore a second strike, rather than a third strike,
offender. The Act also provides a means whereby prisoners currently serving sentences
of 25 years to life for a third felony conviction which was not a serious or violent felony
may seek court review of their indeterminate sentences and, under certain circumstances,
obtain resentencing as if they had only one prior serious or violent felony conviction.
According to the specific language of the Act, however, a current inmate is not entitled to
resentencing if it would pose an unreasonable risk of danger to public safety.” (Id. at
p. 1285, fn. omitted.) “[T]here are two parts to the Act: the first part is prospective only,
reducing the sentence to be imposed in future three strike cases where the third strike is
not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the second part is
retrospective, providing similar, but not identical, relief for prisoners already serving
third strike sentences in cases where the third strike was not a serious or violent felony
(Pen. Code, § 1170.126).” (Id. at p. 1292.)
Subdivision (e)(3) of section 1170.126 provides that an inmate who is otherwise
qualified for resentencing is only eligible if “[t]he inmate has no prior convictions for any
of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12.” Both section 667, subdivision (e)(2)(C)(iv), and
section 1170.12, subdivision (c)(2)(C)(iv), list the following offense: “(I) A ‘sexually
violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and
Institutions Code.” Welfare and Institutions Code section 6600, subdivision (b), defines
a “sexually violent offense” as any one of several enumerated offenses, including Penal
Code section 288a (oral copulation) “when committed by force, violence, duress,
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menace, fear of immediate and unlawful bodily injury on the victim or another person, or
threatening to retaliate in the future against the victim or any other person.”
We are satisfied that defense counsel has fully complied with his responsibilities
and that no arguable appellate issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 278;
People v. Kelly (2006) 40 Cal.4th 106, 110.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
ALDRICH, J.
EGERTON, J.

Judge of the Los Angeles Superior Court, assigned by Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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