People v. Hughes CA4/2 ( 2014 )

Filed 1/17/14 P. v. Hughes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E059474
v. (Super.Ct.No. FWV17172)
MICHAEL WAYNE HUGHES, 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.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Michael Wayne Hughes appeals after the trial court
denied his petition for resentencing under Penal Code section 1170.126, known as the
1
Three Strikes Reform Act of 2012. (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7,
2012).)1 Defendant filed a notice of appeal on August 15, 2013. We affirm.
PROCEDURAL BACKGROUND
Defendant was charged by information with possession for sale of a controlled
substance. (Health & Saf. Code, § 11378, count 1.) It was further alleged that, in the
commission of count 1, defendant was personally armed with a firearm. (Pen. Code,
former § 12022, subd. (c).) In addition, it was alleged as to count 1 that defendant was
previously convicted of a violation of Health and Safety Code section 11378, within the
meaning of Health and Safety Code section 11370.2, subdivision (a). The information
also charged defendant with possession of a firearm by a felon (Pen. Code, former
§ 12021, subd. (a)(1), count 2), and possession of methamphetamine while being armed
with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a), count 3). The
information further alleged that defendant suffered two prior strike convictions (Pen.
Code, §§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)), and that he had served four prior
prison terms (Pen. Code, § 667.5, subd. (b)).
A jury found defendant guilty of all counts. It also found true the allegations that,
as to count 1, defendant was personally armed (Pen. Code, former § 12022, subd. (c)),
and that he was previously convicted of a violation of Health and Safety Code
section 11378, within the meaning of Health and Safety Code section 11370.2,
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2
subdivision (c).2 The jury further found that he had served four prior prison terms, and
that he had two prior strike convictions. The court sentenced defendant to a total term of
57 years to life in state prison. The sentence consisted of the indeterminate term of 25
years to life on count 1, plus three years pursuant to Health and Safety Code section
11370.2, subdivision (c), and one year on each of the four prison priors. The court
sentenced him to four years on the armed allegation (Pen. Code, former § 12022,
subd. (c)), but stayed that term under Penal Code section 654. On count 2, the court
imposed a consecutive term of 25 years to life. On count 3, the court also imposed 25
years to life, but stayed that sentence pursuant to Penal Code section 654. The court
subsequently struck the armed allegation under Penal Code former section 12022,
subdivision (c).
On March 15, 2013, defendant filed an in pro. per. petition for resentencing under
Penal Code section 1170.126. The court denied the petition on the ground that
defendant’s current conviction for possession of methamphetamine while being armed
with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)) made him
ineligible for resentencing under Penal Code section 1170.126, subdivision (e)(2).
2 We note that the information alleged this enhancement under Health and Safety
Code section 11370.2, subdivision (a). However, the allegation was apparently amended.
The jury found true the enhancement allegation under Health and Safety section 11370.2,
subdivision (c).
3
ANALYSIS
After the notice of appeal was filed, this court appointed counsel to represent
defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal. 3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S. Ct. 1396, 18 L. Ed. 2d
493], setting forth a statement of the case, a brief statement of the facts, and identifying
one potential arguable issue: whether defendant is precluded from obtaining relief under
section 1170.126.
Defendant was offered an opportunity to file a personal supplemental brief, which
he has not done. Under People v. Kelly (2006) 40 Cal. 4th 106, we have conducted an
independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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