Filed 7/22/14 P. v. Howard CA2/4
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR




THE PEOPLE,                                                                      B253298

           Plaintiff and Respondent,                                             (Los Angeles County
                                                                                  Super. Ct. No. TA040412)
           v.

CLARENCE HOWARD,

           Defendant and Appellant.



           APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
           Ann Krausz, under appointment by the Court of Appeal, for Defendant and
Appellant.
           No appearance for Plaintiff and Respondent.
                                               ______________________________
       Clarence Howard appeals from an order denying his petition to recall his sentence
under the Three Strikes Reform Act of 2012 (Pen. Code, §1170.126).1 His appointed
counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) Appellant filed a
supplemental brief. We have reviewed the record on appeal and find no appealable
issues. As required by People v. Kelly (2006) 40 Cal.4th 106, 112–114, we describe the
relevant facts and explain our reasons for rejecting the arguments advanced in appellant’s
supplemental brief.
       Appellant’s conviction and sentence were subject to a previous appeal. (People v.
Howard (Sept. 24, 1996, B093301) [nonpub. opn.].) As we explained in our decision in
that appeal, appellant and an accomplice robbed a man of his wallet and truck on
November 8, 1994. During the incident, the accomplice threatened the victim with a gun.
The police promptly located the truck, arrested appellant, and found a gun in his
possession. The accomplice escaped.
       In 1995, appellant was convicted of carjacking in which a principal was armed
with a firearm (§§ 215, subd. (a), 12022, subd. (a)(1)) and possession of a firearm by a
felon (§ 12021, subd. (a)(1)). Two prior strike convictions (§ 667, subds. (b)-(i)), a prior
serious felony conviction (§ 667, subd. (a)(1)), and a prior prison term (§ 667.5, subd.
(b)) were found to be true.
       Appellant was originally sentenced to 27 years to life in prison for the carjacking
under the Three Strikes law, and to a consecutive 24-month-to-life term for the firearm
possession. The court imposed an additional five-year term under section 667,
subdivision (a)(1), and two one-year terms under sections 667.5 and 12022, subdivision
(a)(1). In case No. B093301, we rejected appellant’s arguments that sections 654 and
667, subdivision (c)(7) prohibited the separate punishment for the firearm possession
count, that a five-year enhancement could not be imposed in addition to the indeterminate
term under the Three Strikes law, that appellant’s 1980 convictions of robbery and
attempted robbery were not strikes because they predated the enactment of the Three


       1   Statutory references are to the Penal Code.
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Strikes law and were not serious or violent felonies at the time they were committed, and
that the Three Strikes law violated equal protection and was unconstitutionally vague.
We agreed with respondent that the sentence on the firearm possession count was
erroneous and remanded for resentencing on that count under section 667, subdivision
(e)(2)(A). The record on appeal does not include appellant’s amended abstract of
judgment after resentencing.
       In 2013, appellant petitioned to recall his sentence under section 1170.126. In the
petition, he represented he had been resentenced to a total of 58 years to life in prison.
The trial court denied the petition on the ground that appellant is not eligible for
resentencing under section 1170.126, subdivision (e)(2) because carjacking is a violent
felony under section 667.5, subdivision (c)(17).
       Inmates serving an indeterminate life sentence imposed upon conviction of a
felony or felonies not defined as serious or violent by section 667.5, subdivision (c) may
petition for a recall of sentence and request resentencing. (See § 1170.126, subd. (b).)
The appealability of an order denying a petition for a recall is under review by the
Supreme Court. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, review
granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review
granted July 16, 2013, S212017.)
       As the trial court correctly pointed out, appellant is ineligible for a recall of his
sentence because he was convicted of carjacking, a violent felony under section 667.5,
subdivision (c)(17). In the supplemental brief, appellant argues that his 1990 conviction
of firearm possession by a felon was improperly used as a third strike. Appellant is
mistaken. The only true finding as to the 1990 conviction was that he served a prison
term for it within five years of committing the current offenses. The exhibits to the
supplemental brief show the conviction did not affect appellant’s indeterminate life
sentence; rather, it was used to impose a one-year consecutive determinate term under
section 667.5.
       Appellant requests that we “strike the strike . . . imposed on him on December 20,
1994.” This request is not cognizable on appeal for several reasons. It is unclear what

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December 1994 strike appellant refers to, and the record does not indicate appellant made
the request in the trial court. In any event, section 1170.126 does not give the trial court
power to strike prior strikes. Nor does the court have jurisdiction to strike a strike under
section 1385 and resentence a criminal defendant after execution of sentence has begun.
(See People v. Howard (1997) 16 Cal.4th 1081, 1089.)
       Appellant raises a number of issues that were decided against him in the previous
appeal. He claims his sentence on the firearm possession count is barred by sections 654
and 667, subdivision (c)(7); that the same felony may not be used to triple his sentence
and impose a five-year term under section 667, subdivision (a); that his priors predated
the enactment of the Three Strikes law and were not serious or violent felonies when they
were committed; and that the Three Strikes law was unconstitutional. Appellant is
precluded from relitigating these issues by the doctrine of law of the case. (See People v.
Gray (2005) 37 Cal.4th 168, 196–198 [doctrine prevents relitigating previously decided
points of law except in cases of egregious error or intervening change in controlling
law].) Section 1170.126 has not changed the law on any of the issues decided in the
previous appeal.


                                      DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                         EPSTEIN, P. J.
We concur:



              WILLHITE, J.                               EDMON, J.*


        *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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