Filed 6/1/16 P. v. Smith CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F070794
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. SC058746A)
                   v.

DANIEL SMITH,                                                                            OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.

         Thomas M. Singman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-



         *Before Detjen,      Acting P.J., Peña, J., and Smith, J.
                                      INTRODUCTION
       Appellant Daniel Smith was convicted of rape and being a felon in possession of a
firearm in 1982; it also was found true he personally used a firearm in the commission of
the rape. On September 23, 1994, Smith was sentenced, pursuant to the three strikes law,
to a term of 25 years to life for possession of heroin. Smith filed a petition for recall of
the sentence and resentencing pursuant to Penal Code1 section 1170.126. The petition
was denied and Smith appeals. Appellate counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436. We affirm.
                      FACTUAL AND PROCEDURAL SUMMARY
       On March 18, 1982, following a jury trial, Smith was convicted of violating
section 261, subdivision (2), rape accomplished by means of force, violence, duress,
menace, or fear; and violating former section 12021, being a felon in possession of a
firearm. It also was found true that Smith personally used a firearm within the meaning
of section 12022.5, in the commission of the rape.
       On September 23, 1994, Smith was sentenced as a third strike felon to a term of 25
years to life for possession of heroin in violation of Health and Safety Code section
11350, subdivision (a). Pursuant to section 1170.126, on October 7, 2014, Smith filed a
petition to recall the sentence and for resentencing.
       The People opposed Smith’s petition on the basis that Smith was statutorily
ineligible for resentencing. A hearing on the petition was held on December 19, 2014.
The trial court denied the petition on the basis Smith was ineligible for resentencing.
       On December 26, 2014, Smith filed a notice of appeal of the denial of his petition.
Appellate counsel was appointed March 10, 2015. On June 25, 2015, appellate counsel
filed a Wende brief. Also on June 25, 2015, this court issued its letter to Smith inviting
Smith to submit supplemental briefing. No supplemental brief was received.

       1References   to code sections are to the Penal Code unless otherwise specified.


                                                2.
                                       DISCUSSION
       Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d at
page 436. Smith did not submit supplemental briefing.
       The Three Strikes Reform Act of 2012 (known as Proposition 36) created a
postconviction release proceeding for third strike offenders serving indeterminate life
sentences for crimes that are not serious or violent felonies. If such an inmate meets the
criteria enumerated in section 1170.126, subdivision (e), he or she will be resentenced as
a second strike offender unless the trial court determines such resentencing would pose
an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f); People v.
Yearwood (2013) 213 Cal.App.4th 161, 168.)
       The trial court denied Smith’s section 1170.126 petition on the basis he was
ineligible. Section 1170.126, subdivision (e)(3) provides that in order to be eligible for
resentencing, an inmate must not have suffered any prior conviction for an offense
specified in section 667, subdivision (e)(2)(C)(iv) or section 1170.12, subdivision
(c)(2)(C)(iv).
       Rape by force or fear is a disqualifying prior conviction as it qualifies as a
sexually violent offense under Welfare and Institutions Code section 6600, subdivision
(b). (§§ 667, subd. (e)(2)(C)(iv)(I), 1170.126, subd. (e)(3).)
       After an independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                      DISPOSITION
       The order denying Smith’s section 1170.126 petition is affirmed.




                                              3.
