People v. Hearon CA2/4 ( 2016 )

Filed 5/16/16 P. v. Hearon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B258486
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA251403)
v.
STEVEN HEARON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Laura F. Priver, Judge. Affirmed.
Steven Hearon in pro per; Gideon Margolis, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Respondent.
In 2004, appellant Steven Hearon was convicted of battery with serious
bodily injury (Pen. Code, § 243, subd. (d)) and assault by means of force likely to
produce great bodily injury (id., § 245, subd. (a)(1)). The court found true that
appellant had been convicted of three prior felonies: second degree murder in
1988, second degree robbery in 1978, and first degree robbery in 1977. Appellant
was sentenced under the “Three Strikes” law (Pen. Code §§ 1170.12, subd. (a)-(d)
& 667, subd., (b)-(i)) to 25 years to life in prison for the battery conviction. The
sentence for the assault conviction was imposed and stayed pursuant to Penal Code
section 654. In 2006, this court affirmed the conviction and sentence. (See People
v. Hearon (Jan. 18, 2006, B176310) [nonpub. opn.].)
In July 2014, appellant, acting in propria persona, moved for modification of
his sentence, contending that the sentencing court had made improper “dual use[]”
of facts, and that he had been subjected to multiple punishments for the same
course of conduct.1 The trial court denied his motion, finding there had been no
dual use of any facts in sentencing appellant. (See Rules of Court, rule 4.420(c)
[prohibiting “[a] fact that is an element of the crime” from being used “to impose
the upper term”]; Pen. Code, § 1170, subd. (b) [sentencing court may not rely on
same fact in imposing both an upper term and sentencing enhancement].) The
court also noted that appellant had been sentenced to 25 years to life for the
battery, but that the sentence on the assault had been imposed and stayed pursuant
1
This was not appellant’s first such motion. Appellant has filed four prior motions
for resentencing, modification of sentence, or recall of sentence, all of which have been
denied. On February 18, 2014, we affirmed the denial of appellant’s petition for
resentencing under the 2012 “Reform Act,” which amended the Three Strikes law to
provide that an offender with two or more prior strikes convicted of a nonserious or
nonviolent felony should generally be sentenced as a two-strike offender, and to permit
prisoners serving sentences imposed under the prior version of the Three Strikes law to
petition for resentencing. (People v. Hearon (Feb. 18, 2014, B249335) [nonpub. opn.];
see People v. Yearwood (2013) 213 Cal.App.4th 161, 169-179.) In addition, appellant
has filed a dozen writ petitions in this court and eight in the trial court.
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to Penal Code section 654, and that all of appellant’s strikes arose out of separate
conduct on separate dates. Appellant noticed an appeal.
After review of the record, appellant’s court-appointed counsel filed an
opening brief, asking this court to review the record independently pursuant to
People v. Wende (1979) 25 Cal.3d 436. On January 12, 2016, we sent a letter to
appellant’s last known address, advising him that he had 30 days within which to
submit by brief or letter any contentions or argument he wished this court to
consider. We received a response in which appellant contended the jury’s finding
that he was guilty of assault by means of force likely to produce great bodily injury
was an “illegal conviction” because “[t]he jury never found [him] guilty of simple
misdemeanor assault.”
This court has examined the entire record, and is satisfied no arguable issues
exist. Appellant’s contention that the jury was obliged first to find him guilty of
misdemeanor assault prior to finding him guilty of assault by means of force likely
to produce great bodily injury has no merit. Moreover, any issues pertaining to the
illegality of the verdict or sentence should have been raised in the 2006 appeal.
Appellant has, by virtue of counsel’s compliance with the Wende procedure and
our review of the record, received adequate and effective appellate review of the
order denying his petition in this case. (Smith v. Robbins (2000) 528 U.S. 259,
278.)
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DISPOSITION
The order denying the motion for modification of sentence is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
COLLINS, J.
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