People v. Perry CA2/5 ( 2015 )

Filed 10/13/15 P. v. Perry CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B261133
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA026155)
v.
CURTIS PERRY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County of Los Angeles,
Martin Herscovitz, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B.
Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Curtis Perry (defendant) appeals from the trial court’s
order denying his petition for recall of his three strikes sentence. On appeal, defendant’s
appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal. 3d 436
(Wende) requesting that this court independently review the entire record to determine if
there are any issues, which if resolved in defendant’s favor, would require reversal or
modification of the judgment. Accordingly, we notified defendant that he could brief any
grounds of appeal, contentions, or arguments he wanted us to consider. Defendant did
not file a supplemental brief.
Based on our independent review of the entire file, we conclude that there are no
arguable issues on appeal. We therefore affirm the trial court’s order denying his petition
to recall his sentence.
PROCEDURAL BACKGROUND
In 1997, defendant was convicted on two counts of forgery in violation of Penal
Code section 470, subdivision (d). The trial court found that defendant had suffered
twenty prior strike convictions within the meaning of sections 667 and 1170.12, including
a conviction for attempted murder in violation of Penal Code sections 664 and 187. The
trial court sentenced defendant under the Three Strikes law to a term of 53 years to life.
In November 2014, defendant filed a petition to recall his sentence pursuant to
Penal Code section 1170.126. The trial court rejected the petition on procedural grounds,
ruling that defendant did not provide proof of service on the District Attorney and citing
Kaulick v. Superior Court (2013) 215 Cal. App. 4th 1279, 1302 and footnote 24.
2
DISCUSSION
Pursuant to People v. Wende, supra, 25 Cal. 3d 436, we examined the entire record
to determine if there were any arguable issues on appeal. Based on that independent
review, we have determined there are no arguable issues on appeal because even
assuming, arguendo, that the trial court erred by rejecting defendant’s petition to recall
his sentence on procedural grounds, defendant was not entitled to resentencing because
his prior conviction for attempted murder made him ineligible for resentencing under
Penal Code sections 1170.126, subdivision (e)(3) and 667, subdivision (e)(2)(iv)(IV).
We are therefore satisfied that defendant’s appointed counsel has fully satisfied his
responsibilities under Wende, supra, 25 Cal. 3d 436.
DISPOSTION
The order denying defendant’s petition to recall his sentence is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, Acting P. J.
We concur:
KRIEGLER, J.
KIRSCHNER, J. 

Judge of the Superior Court of the County of Los Angeles, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
3