P. v. Smith CA4/2 ( 2013 )

Filed 6/26/13 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E058380
v. (Super.Ct.No. FSB05283)
WILLIAM SHAWN SMITH, 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.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant William Shawn Smith appeals from an order denying his petition for
recall of his indeterminate life term, under Penal Code section 1170.126, subdivision (f).1
We will affirm the order.
BACKGROUND
Defendant was convicted in December 1995 of one count of attempted carjacking
(§§ 644, 215, subd. (a)) and one count of second degree robbery (§ 211). Two strike
prior allegations and two prison priors were found true. (§§ 667, subds. (b)-(i), 667.5,
subd. (b).) In February 1996, the court sentenced defendant to 25 years to life on the first
count, and stayed a sentenced of 25 years to life on the second count, pursuant to section
654. The court also stayed one-year terms imposed for the prison priors.
On November 6, 2012, the electorate passed Proposition 36, also known as the
Three Strikes Reform Act. Among other things, this ballot measure enacted section
1170.126, which permits persons currently serving an indeterminate life term under the
three strikes law to file a petition in the sentencing court, seeking to be resentenced to a
determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court
determines, in its discretion, that the defendant meets the criteria of section 1170.126,
subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is
eligible for resentencing if he or she is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
1 All further statutory citations refer to the Penal Code.
2
subdivision (c) of Section 1170.12 “for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).) Defendant’s current
conviction is for one serious felony and one violent felony.2 On November 14, 2012,
defendant filed a petition for writ of habeas corpus essentially conceding that he does not
qualify for resentencing by the terms of the statute, but asserting that section 1170.126
violates his constitutional right to the equal protection of the law because it differentiates
between individuals sentenced under the three strikes law for nonviolent, nonserious
felonies and individuals sentenced under the three strikes law for violent and/or serious
felonies.
The trial court deemed the petition to be a petition for recall of sentence under
section 1170.126 and appointed the public defender to represent defendant, who waived
his presence. On March 15, 2013, after a hearing, the court denied the petition, finding
that defendant’s crimes are serious felonies under section 1192.7.
Defendant filed a timely notice of appeal.
2Attempted carjacking is a serious felony. (§ 1192.7, subd. (c)(27), (c)(39).)
Robbery of any kind is a violent felony. (§ 667.5, subd. (c)(9).)
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LEGAL ANALYSIS
DEFENDANT’S COUNSEL’S BRIEF
We appointed counsel to represent defendant on appeal. After examination of the
record, counsel filed an opening brief raising no issues and asking this court to
independently review the record. (People v. Wende (1979) 25 Cal. 3d 436.)
Counsel stated that she had considered as a possible issue whether the trial court
erred in denying defendant’s petition for resentencing. Robbery of any kind is a violent
felony. (§ 667.5, subd. (c)(9).) Attempted carjacking is a serious felony.3 (§ 1192.7,
subd. (c)(27), (c)(39).) Accordingly, defendant is not eligible for resentencing pursuant
to section 1170.126, subdivision (f).
We have independently examined the record and have found no arguable issues.
We are satisfied that defendant’s attorney has fully complied with her responsibilities and
that no arguable issues exist. (People v. Kelly (2006) 40 Cal. 4th 106, 109-110; People v.
Wende, supra, 25 Cal.3d at p. 441.)
DEFENDANT’S SUPPLEMENTAL BRIEF
We offered defendant the opportunity to file any supplemental brief he deemed
necessary. He did so, again raising his equal protection contention. We reject that
contention.
3 Attempts, other than attempted murder, are not included in section 667.5,
subdivision (c), as violent felonies. (People v. Reed (2005) 129 Cal. App. 4th 1281, 1284-
1285 & fn. 1.)
4
For purposes of equal protection, most legislation is tested only to determine if the
challenged classification bears a rational relationship to a legitimate state purpose.
(People v. Hofsheier (2006) 37 Cal. 4th 1185, 1200.) “[A] statutory classification that
neither proceeds along suspect lines nor infringes fundamental constitutional rights must
be upheld against equal protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification. Where there are
plausible reasons for [the classification], our inquiry is at an end.” (Id. at pp. 1200-1201,
internal quotation marks and citations omitted.) “[T]hose attacking the rationality of the
legislative classification have the burden to negative every conceivable basis which might
support it.” (Id. at p. 1201, internal quotation marks and citations omitted.)
For purposes of a statute which offers a substantial reduction in sentence, it is
clearly rational to distinguish between inmates convicted of serious or violent offenses
and inmates convicted of nonserious or nonviolent offenses. Defendant offers no
argument to the contrary. Accordingly, he has failed to meet his burden “‘“to negative
every conceivable basis”’” which supports the legislation’s distinction. (People v.
Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
KING
J.
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