People v. Jones CA2/4 ( 2013 )

Filed 12/9/13 P. v. Jones CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR
THE PEOPLE, B248277
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA012309)
v.
MARLIN JONES, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
Dee Hayashi, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
______________________________
Marlin Jones, Jr., appeals from an order denying his motion to recall his sentence
under the Three Strikes Reform Act of 2012, added by Proposition 36 (the Reform Act).
(Pen. Code, § 1170.126).1 His appointed counsel filed a Wende brief. (People v. Wende
(1979) 25 Cal.3d 436.) Appellant filed a supplemental brief.
In 1997, appellant was convicted of first degree burglary (§ 459), forgery (§ 470),
intimidation or dissuading a witness (§ 136.1, subd. (c)(1)), and grand theft of a firearm
(§ 487, subd. (d)). Two prior serious or violent felonies and a prior prison term were
found to be true. Appellant was sentenced to a total of 81 years to life, consisting of three
consecutive terms of 25 years to life on the burglary, forgery, and dissuading a witness
counts. On the burglary count, the court also imposed one year for the prior prison term
enhancement (§ 667.5) and five years for the serious felony enhancement (§ 667,
subd. (a)). A 25-years-to-life sentence for grand theft of a firearm was stayed. We
affirmed. (People v. Jones (1998) 67 Cal.App.4th 724.)
On February 28, 2013, appellant filed a motion for resentencing under sections
1170.126, 667, subdivision (f)(2), 1385, and People v. Superior Court (Romero) (1996)
13 Cal.4th 497. The trial court denied the motion with prejudice because appellant was
convicted of burglary, a violent felony under section 667.5, subdivision (c)(21), and
therefore was ineligible for resentencing under section 1170.126.
Section 1170.126 applies to a person serving an indeterminate life sentence
imposed upon conviction of a felony or felonies not defined as serious or violent for
purposes of the Three Strikes law; such a person may petition for a recall of sentence and
request resentencing. (See § 1170.126, subd. (a) & (b).) Resentencing depends on
meeting additional eligibility criteria and on the court’s discretionary determination that it
“would not pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (e)
& (f).)
Courts of Appeal are split on the issue whether a person who is ineligible for
resentencing under section 1170.126 may appeal from an order denying a petition to
1 Statutory references are to the Penal Code.
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recall a sentence, and the Supreme Court has granted review to consider the appealability
of a such an order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, review
granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review
granted July 31, 2013, S212017; see also People v. Leggett (2013) 219 Cal.App.4th 846,
852–853, petn. for review pending, petn. filed Oct. 28, 2013 [citing § 1237, subd. (b) and
holding that only defendant with substantial rights under section 1170.126 may appeal
from order denying petition to recall]; but see People v. Wortham (2013) 220 Cal.App.4th
1018, 1023 [finding “little practical difference in reviewing a trial court’s order for
correctness before dismissing it as nonappealable and in reviewing the order for
correctness before affirming it”].)
Under People v. Wende, supra, 25 Cal.3d 436, we review the record to determine
whether there are arguable issues on appeal. To the extent that the issue of defendant’s
eligibility under section 1170.126 is relevant to the merits of his appeal, we conclude that
it is not an arguable issue and affirm the order instead of dismissing the appeal.
Appellant is not eligible for resentencing under 1170.126, subdivision (e) (1) because his
current indeterminate life sentence is based on his conviction of two serious or violent
felonies: first degree burglary, both a serious and a violent felony for purposes of the
Three Strikes law (§§ 1192.7, subd. (c)(18) & 667.5, subd. (c)(21)), and intimidation of a
witness, a serious felony (§ 1192.7, subd. (c)(37)). Due to his conviction of these
felonies, his sentence under the Reform Act “would not have been an indeterminate life
sentence.” (§ 1170.126, subd. (a).)
In his supplemental brief, appellant argues the court should have considered his
motion as a Romero motion to strike his prior strike convictions under section 1385. This
is not an arguable issue on appeal. A trial court does not have general jurisdiction to
resentence a criminal defendant after execution of sentence has begun. (See People v.
Howard (1997) 16 Cal.4th 1081, 1089.) Section 1385 does not grant the court such
jurisdiction. Defendant’s sentence is not clearly unauthorized, so as to be subject to
correction at any time. (See People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.)
Our review of the record reveals no arguable issues for appeal.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
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