The People v. Howe CA2/6 ( 2013 )

Filed 8/27/13 P. v. Howe CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
THE PEOPLE, 2d Crim. No. B248142
(Super. Ct. No. F281349)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JAMES CLAYTON HOWE,
Defendant and Appellant.
James Clayton Howe appeals from the order denying his petition to recall
his 25 year-to-life sentence pursuant to the procedures set forth under Penal Code1
section 1170.126, added by Proposition 36, the Three Strikes Reform Act of 2012.
We appointed counsel to represent appellant in this appeal. After counsel's
examination of the record, he filed an opening brief in which no issues were raised.
We advised appellant that he had 30 days within which to personally
submit any contentions or issues he wished us to consider. Appellant filed a
supplemental letter brief which seeks a more favorable sentence.
In 1999, appellant was convicted of assault with a deadly weapon or by
means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and resisting an
executive officer (§ 69). The trial court found true allegations of four prior “strikes”
1
All statutory references are to the Penal Code unless otherwise stated.
under the Three Strikes law, and sentenced him to two concurrent prison terms of 25
years to life. (On our own motion, we take judicial notice of People v. Howe (March 28,
2001, B139592 [nonpub. opn.]) pursuant to Evidence Code sections 459, subdivision (a)
and 452, subdivision (d).)
On November 21, 2012, appellant filed a petition to recall his sentence
pursuant to section 1170.126. The trial court denied his petition after hearing on
February 28, 2013. In 1979, appellant was convicted of two forcible rapes and oral
copulation. In 1989, he was convicted of assault with intent to commit rape and sexual
battery. (Howe, supra, B139592, at p. 9.) Those offenses make him ineligible for
resentencing under section 1170.126, subdivision (e)(3).2
We have read and considered appellant’s letter brief, his petition for recall
of sentence and other materials from the trial court. We are satisfied that appellant's
attorney has fully complied with his responsibilities and that no arguable issues exist.
(People v. Wende (1979) 25 Cal.3d 436, 443; People v. Kelly (2006) 40 Cal.4th 106, 125
126.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
2
See section 1170.12, subdivision (c)(2)(C)(iv).
Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
______________________________
Richard B. Lennon, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.