Filed 8/24/15 P. v. Baldenegro 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063077

v.                                                                       (Super.Ct.No. FBA01785)

HECTOR DANNY BALDENEGRO,                                                 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.

         Defendant and appellant Hector Danny Baldenegro appeals after the trial court

denied his petition for resentencing under Penal Code section 1170.126, known as the




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Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,

2012)).1 Defendant filed a notice of appeal on March 10, 2015. We affirm.

                               PROCEDURAL BACKGROUND2

         In 1997, a jury convicted defendant of two counts of second degree armed robbery

(§ 211), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), and one

count of being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The jury

also made a true finding on the allegation that defendant personally used a firearm in the

commission of the robberies. After defendant waived his right to a jury trial on the

priors, a trial court found that he had suffered three previous serious felony convictions

within the meaning of section 667, subdivision (a), and three prior convictions within the

meaning of section 667, subdivisions (b) through (i) (hereafter “the three strikes law”).

Defendant was sentenced to: (1) five consecutive 25-to-life indeterminate prison terms

under the three strikes law; (2) a consecutive 10-year determinate prison term on the

firearm allegation; and (3) three consecutive five-year determinate prison terms on the

prior serious felony convictions allegation, as required by section 667, subdivision (a).

His aggregate state prison sentence was 150 years to life. Defendant appealed.



         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

         2
         The procedural background is taken, in part, from two prior nonpublished
opinions of this court. (People v. Baldenegro (Dec. 2, 1999, E023746 [nonpub. opn.] &
People v. Baldenegro (Feb. 13, 2001, E027737 [nonpub. opn].) On our own motion, we
take judicial notice of our prior opinions. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)



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       This court affirmed the convictions, while reversing the sentence and remanding

for resentencing. (People v. Baldenegro, supra, E023746.) In particular, we ordered the

trial court to hold a hearing to determine the validity of defendant’s challenge to the

guilty pleas that resulted in his prior convictions. We also ordered the trial court to

determine whether to impose concurrent or consecutive terms on the robbery counts, to

solicit from the parties evidence as to when the firearm possession count occurred, and

then to determine whether to impose or stay a term on it, to stay the sentences on the

assault counts pursuant to section 654, and to impose only one enhancement for the three

prior serious felony conviction true findings.

       The trial court held a hearing on the guilty pleas, which resulted in defendant’s

prior convictions and concluded that they were valid. The court also imposed

consecutive terms on the robbery counts, stayed punishment on the firearm possession

count and the assault counts, and imposed one enhancement for the three prior serious

felony convictions. Defendant was sentenced to two consecutive 25-year-to-life terms

for the robberies, two consecutive 10-year terms for the firearm-use findings as to each

robbery, and one five-year term for the three section 667, subdivision (a)(1) findings, for

a total sentence of 75 years to life.

       Defendant appealed and upon his request, this court appointed counsel to represent

him. Counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436

(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). This court found no

arguable issues and affirmed. (People v. Baldenegro, supra, E027737.)




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       On November 10, 2014, defendant filed a petition for resentencing under section

1170.126, in propria persona. He claimed that all of the prior convictions used in this

case were from when he was a minor and did not fully understand the repercussions of

accepting a plea bargain. He said that he was guilty of one of those counts, but he had to

plead no contest to the other counts, which he had nothing to do with. The court denied

the petition since defendant’s current convictions were for the serious felony of robbery

(§ 211), with a firearm-use enhancement, which made him ineligible for resentencing.

(§§ 1170.126, subd. (e)(1), 1192.7, subd. (c)(19).)

       Defendant filed a notice of appeal.

                                         ANALYSIS

       This court appointed counsel to represent defendant on appeal. Counsel has filed a

brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S.

738, setting forth a statement of the case, a brief statement of the facts, and identifying

one potential arguable issue: whether the court properly determined that defendant was

ineligible for resentencing under section 1170.126.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has done. He contends that: (1) his sentence of 75 years to life violates the

proscription against cruel and unusual punishment; (2) the trial court should have stricken

one of his prior strikes; and (3) his plea to the prior strike convictions was not valid.

       “The Reform Act amended the three strikes statutes [citations] to require that

before a defendant may be sentenced to an indeterminate life term in prison under the

Three Strikes law, the new felony (the commitment offense) must generally qualify as a


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serious or violent felony. [Citations.] The Reform Act also added section 1170.126,

which provides a procedure for resentencing ‘persons presently serving an indeterminate

term of imprisonment’ under the Three Strikes law, ‘whose sentence under this act would

not have been an indeterminate life sentence.’ [Citation.] Such a person may file a

petition to recall his or her sentence and be sentenced as a second strike offender.

[Citation.] An inmate is eligible for such resentencing if none of his or her current

commitment offenses constitutes serious or violent felonies and none of the enumerated

factors disqualifying an inmate for resentencing under the Reform Act applies.

[Citation.]” (People v. Brown (2014) 230 Cal.App.4th 1502, 1509-1510 [Fourth Dist.,

Div. Two] (Brown).)

       Defendant argues that his sentence of 75 years to life constitutes cruel and unusual

punishment under the California Constitution and the Eighth Amendment of the United

States Constitution. Whether the sentence was cruel and unusual is an issue that should

have been considered on direct appeal of defendant’s 1997 convictions. As outlined

above, defendant previously appealed. This court affirmed the convictions, but reversed

the sentence and remanded for resentencing. (People v. Baldenegro, supra, E023746.)

The trial court resentenced defendant. Defendant appealed again, and we affirmed that

sentence. (People v. Baldenegro, supra, E027737.) Defendant is now attempting to

challenge that sentence in this appeal. However, he should have done so in his earlier

appeal(s), not in an appeal of the denial of his petition for resentencing under section

1170.126. (See post.)




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       Regarding defendant’s claim that the trial court should have struck one of his prior

strike convictions, such challenge also should have been made in one of his direct

appeals. An examination of the statutory scheme of section 1170.126 supports the

conclusion that the electorate’s intent was “not to allow the trial court to retain its section

1385 discretionary authority when determining whether an inmate is eligible for

resentencing under the Reform Act.” (Brown, supra, 230 Cal.App.4th at p. 1514.)

       As to defendant’s claim that his plea to the prior strike convictions was not valid,

we note that, after his first appeal, we ordered the trial court to hold a hearing to

determine the validity of his challenge to the guilty pleas that resulted in his prior

convictions. The trial court did so and concluded that they were valid. We affirmed.

(People v. Baldenegro, supra, E027737.) Thus, that issue has already been decided on

appeal.

       Ultimately, it is undisputed that defendant’s current commitment felony offenses

of robbery (§ 211) are serious and violent felonies. (§§ 1192.7, subd. (c)(19) & 667.5,

subd. (c)(9).) It is also undisputed that his current convictions of assault with a

semiautomatic firearm (§ 245, subd. (b)) are serious felonies, as well. (§ 1192.7,

subd. (c)(31).) Therefore, defendant is ineligible for resentencing under the Reform Act.

(§§ 1170.126, subd. (e)(1).) The trial court properly denied his petition for resentencing,

and defendant has given us no valid reason to reverse the court’s denial.

       Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues.




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                                 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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