People v. Magana CA2/3 ( 2016 )

Filed 4/28/16 P. v. Magana CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE, B266274
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA209316)
v.
MIGUEL MAGANA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
William L. Heyman, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Defendant Miguel Magana appeals from the denial of his petition for recall of
sentence under Proposition 36, the Three Strikes Reform Act of 2012 (Act). We affirm.
PROCEDURAL BACKGROUND
In 2001, Magana was found guilty of corporal injury to a spouse (Pen. Code,
§ 273.5, subd. (a))1 and assault with a deadly weapon or by means of force likely to
produce great bodily injury (§ 245, subd. (a)(1)), each with personal use of a deadly or
dangerous weapon (§12022, subd. (b)(1)), and first degree burglary (§ 459). Magana
admitted two prior convictions of robbery (§ 211) and residential burglary (§ 459).
(§ 667, subd. (d)). The trial court sentenced Magana to a Three Strikes term of 25 years
to life in state prison. (The judgment was affirmed on appeal in People v. Magana
(Jan. 31, 2002, B148974) [nonpub. opn.].)
On June 15, 2015, Magana, acting in propria persona, filed a petition for writ of
habeas corpus. He “petition[ed] for recall of his sentence pursuant to . . . section
1170.126” and “further allege[d] that his sentence and ju[d]gment restrain[ed] [him] of
his liberty in violation of California and federal constitutions and law.” He set forth three
grounds for relief: (1) resentencing him would not pose an unreasonable risk of danger to
public safety, (2) his strike priors should be dismissed in the interest of justice, and (3) his
trial counsel rendered ineffective assistance by convincing Magana to admit his prior
convictions.
The trial court treated part of the habeas petition as a Proposition 36 petition and,
on June 25, 2015, denied the petition as untimely because it “was not filed within the
two-year deadline from the effective date of Proposition 36 (November 7, 2012), as
required by section 1170.126(b)[,] and good cause was not stated for the late filing.” The
court denied the rest of the habeas petition without prejudice to refiling it as a separate
petition in the sentencing court. Defendant timely appealed from the denial of his
petition to recall his sentence.
1
All further statutory references are to the Penal Code unless otherwise stated.
2
DISCUSSION
We appointed counsel to represent Magana on appeal. After reviewing the record,
counsel filed an opening brief requesting this court independently review the record
pursuant to People v. Wende (1979) 25 Cal. 3d 436, 441. We directed counsel to send the
record on appeal and a copy of the opening brief to Magana and notified Magana that he
had 30 days within which to personally submit any contentions or issues that he wished
us to consider. Magana has not filed a supplemental brief.
We have examined the entire record and determined that, as the trial court found,
Magana’s petition to recall his sentence under Proposition 36 was untimely and he did
not establish good cause for a filing delay.
Section 1170.126, subdivision (b) provides: “Any person serving an indeterminate
term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section
667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by
trial or plea, 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, may file a
petition for a recall of sentence, within two years after the effective date of the act that
added this section or at a later date upon a showing of good cause, before the trial court
that entered the judgment of conviction in his or her case, to request resentencing in
accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of
Section 1170.12, as those statutes have been amended by the act that added this section.”
(Italics added.) The Act became effective on November 7, 2012. (§ 1170.126; added by
initiative [Prop. 36, § 6 (Gen. Elec. Nov. 6, 2012) eff. Nov. 7, 2012].)
Here, Magana filed his petition on June 15, 2015—more than six months past the
two-year window for filing. He provided no explanation attempting to establish good
cause for filing a late petition. As the petition made no showing of good cause for the
delay, it was properly denied as untimely.
3
We are satisfied that defense counsel has fully complied with his responsibilities
and that no arguable appellate issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 278-
279; People v. Kelly (2006) 40 Cal. 4th 106, 110.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
ALDRICH, J.
LAVIN, J.
4