People v. Ross CA2/8 ( 2014 )

Filed 8/28/14 P. v. Ross CA2/8
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B255528
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA285996)
v.
CHARLES ANTHONY ROSS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H.
Egerton, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
******
Charles Anthony Ross appeals from the trial court’s denial of his request for
resentencing and “post-conviction Romero[1] motion.” His appointed counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende), raising no issues. We have
reviewed the entire record and find no arguable issue. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2005, appellant was convicted of robbery and assault by means of force
likely to produce great bodily injury (Pen. Code, § 211;2 former § 245, subd. (a)(1)) and
sentenced under the “Three Strikes” law to an indeterminate term of 35 years to life. We
affirmed his conviction in 2007. (People v. Ross (May 10, 2007, B188587) [nonpub.
opn.].)
Proposition 36 (§ 1170.126) was passed in November 2012. Appellant filed two
petitions in 2012 for a writ of habeas corpus seeking recall of his third strike sentence
under Proposition 36 and dismissal of his strike prior convictions. (§ 1285.) The court
denied his requests. It found appellant ineligible for recall under Proposition 36 because
his current conviction for robbery was for a serious and/or violent felony and therefore he
was statutorily excluded under the recall provisions.
Subsequently, appellant wrote two letters to the court asking the court to strike his
prior strikes and sentence him to a term other than life under the Three Strikes law.
Neither letter is part of the record on appeal, but the court summarizes his requests in its
memorandum opinion ruling on the requests, dated February 4, 2014. The court held
there was no basis to reconsider appellant’s request for resentencing or to grant a
postconviction Romero motion. The court reiterated appellant’s conviction for a serious
and/or violent felony disqualified him for resentencing under Proposition 36. Moreover,
the court held it did not have authority to reconsider the sentencing court’s ruling on
appellant’s original Romero motion, and besides, the sentencing court properly exercised
1
People v. Romero (1996) 13 Cal. 4th 497 (Romero).
2
Further undesignated statutory references are to the Penal Code.
2
its discretion to deny the Romero motion in the first instance. Appellant timely appealed
from this February 4, 2014 denial order.3
DISCUSSION
After counsel filed his Wende brief, appellant was notified he could submit any
contentions or issues that he wished us to consider. He did not file a supplemental brief.
From our review of the entire record, we are satisfied counsel has fully complied with his
responsibilities and no arguable issues exist. (People v. Kelly (2006) 40 Cal. 4th 106,
123-124; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
3
To the extent the court construed appellant’s letters as a petition for recall of
sentence, we note the appellate courts have reached conflicting conclusions on whether
an order denying this type of petition is appealable, and the issue is currently under
review by the California Supreme Court in Teal v. Superior Court (2013) 217
Cal. App. 4th 308, review granted July 31, 2013, S211708, and In re Martinez (2014) 223
Cal. App. 4th 610, review granted May 14, 2014, S216922. We need not decide this
threshold issue and add to the debate. Even if the order is not appealable, we could
review the order by writ petition.
3