Filed 6/21/16 P. v. Archuleta 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B263220

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA036073)
         v.

ALBERT ARCHULETA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
         Richard B. Lennon, under appointment by the Court of Appeal, for Defendant
and Appellant.
         No appearance for Plaintiff and Respondent.
                                            _____________________
       In 1996 defendant and appellant, Albert Archuleta, was found guilty of possessing
a controlled substance. (Health & Saf. Code, § 11350.) Because he had already
sustained two or more prior serious felony convictions, the trial court sentenced him to a
term of 25-years-to-life under the “Three Strikes” law. This judgment was affirmed on
appeal in People v. Archuleta (Aug. 24, 1998, B111003) [nonpub. opn.].
       Following the passage of Proposition 36,1 Archuleta, while he was being
represented by a deputy public defender, filed a petition for recall of his sentence. 2 On
March 10, 2015, the trial court denied the petition with prejudice on the ground that one
of Archuleta’s prior convictions was for attempted murder, which disqualified him from
Proposition 36 resentencing. Archuleta thereafter filed a timely notice of appeal.
       We appointed counsel to represent Archuleta on appeal. After reviewing the
record, counsel filed an opening brief requesting this court to 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 Archuleta and notified
Archuleta that he had 30 days within which to personally submit any contentions
or issues that he wished us to consider. Archuleta filed a supplemental brief on
April 8, 2016.
       We have examined the entire record and determined that, as the trial court found,
Archuleta is ineligible for a reduction of his sentence under Proposition 36 because he
has a disqualifying prior conviction under section 1170.126, subdivision (e)(3).
       As we explained in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th
1279: “On November 6, 2012, voters approved Proposition 36, the Three Strikes Reform
Act of 2012 (the Act). Under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i),


1
       The passage of Proposition 36 resulted in the enactment of Penal Code
section 1170.126.
       All further statutory references are to the Penal Code unless otherwise specified.
2
      The trial court has been unable to locate a copy of Archuleta’s petition for
Proposition 36 resentencing.


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1170.12) as it existed prior to Proposition 36, a defendant convicted of two prior serious
or violent felonies would be subject to a sentence of 25 years to life upon conviction of a
third felony. Under the Act, however, a defendant convicted of two prior serious or
violent felonies is subject to the 25-year-to-life sentence only if the third felony is itself a
serious or violent felony. If the third felony is not a serious or violent felony, the
defendant will receive a sentence as though the defendant had only one prior serious or
violent felony conviction, and is therefore a second strike, rather than a third strike,
offender. The Act also provides a means whereby prisoners currently serving sentences
of 25 years to life for a third felony conviction which was not a serious or violent felony
may seek court review of their indeterminate sentences and, under certain circumstances,
obtain resentencing as if they had only one prior serious or violent felony conviction.
According to the specific language of the Act, however, a current inmate is not entitled to
resentencing if it would pose an unreasonable risk of danger to public safety.” (Id. at
pp. 1285-1286, fn. omitted.) “[T]here are two parts to the Act: the first part is
prospective only, reducing the sentence to be imposed in future three strike cases where
the third strike is not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the second
part is retrospective, providing similar, but not identical, relief for prisoners already
serving third strike sentences in cases where the third strike was not a serious or violent
felony (Pen. Code, § 1170.126).” (Id. at p. 1292.)
       Subdivision (e)(3) of section 1170.126 provides that an inmate who is otherwise
qualified for resentencing is only eligible if “[t]he inmate has no prior convictions for any
of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12.” Both of these provisions would preclude Archuleta
from Proposition 36 resentencing because he has a prior conviction for attempted murder.
(See §§ 667, subd. (e)(2)(C)(iv)(IV); 1170.12, subd. (c) (2)(C)(iv)(IV); People v. Johnson
(2015) 61 Cal.4th 674, 681-682 [“a defendant will be excluded from the new sentencing
provisions if he or she suffered a prior conviction for specified sex offenses, any
homicide offense or attempted homicide offense defined in sections 187 through 191.5,


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solicitation to commit murder, assault with a machine gun on a peace officer or
firefighter, possession of a weapon of mass destruction, or any serious or violent felony
punishable in California by life imprisonment or death. [Citations.] These prior
convictions are sometimes referred to as ‘super strikes.’ [Citation.]” (Fn. omitted.)].)
       In his supplemental brief, Archuleta argues that finding him ineligible because of
his 1987 prior conviction for attempted murder would violate his equal protection rights.
He argues: “Proposition 47 make[s] drug possession a misdemeanor and Prop. 36 is
specifically for [a] third strike drug conviction, but the appellant is ineligible because of
his 1987 prior conviction for attempted homicide. Proposition 36 and 47 pertain ‘only’ to
‘certain’ defendant[s] serving a third strike drug conviction, but deny other[s] that fall
within the scope of the law. Both propositions clearly violate the fairness of the law
under the 14th Amendment . . . violating appellant’s equal protection under State and
Federal law.”
       This argument is without merit, as demonstrated by People v. Johnston (2016)
247 Cal.App.4th 252, a case rejecting essentially the same claim (although that case
addressed only a finding of Proposition 47 ineligibility): “Defendant . . . resorts to the
usually unprofitable claim that this dichotomy in punishment results in a violation of his
constitutional right to equal protection under the law. ‘[N]either the existence of two
identical criminal statutes prescribing different levels of punishments, nor the exercise of
a prosecutor’s discretion in charging under one statute and not the other, violates equal
protection principles.’ (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) Specifically,
the disparity between the former punishment for ‘grand theft auto’ and unlawful taking or
driving is not a basis for finding a violation. [Citation.] Even if we assume the two
categories of crimes are situated similarly, there is a rational basis for the distinction in
treatment: The electorate was not obligated to extend relief under the initiative to all
similar conduct. It could instead move in an incremental way, gauging the effects of this
sea change in penal law.” (Id. at pp. 258-259; see also People v. Acosta (2015)
242 Cal.App.4th 521, 527-528 [rejecting similar Proposition 47 ineligibility claim:
“Acosta’s equal protection claim fails under the applicable rational basis test . . .


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[because] the electorate could rationally extend misdemeanor punishment to some
nonviolent offenses but not to others, as a means of testing whether Proposition 47 has a
positive or negative impact on the criminal justice system.”].)
       Archuleta also complains his trial attorney failed to call the trial court’s attention
to People v. Vargas (2014) 59 Cal.4th 635, in order to demonstrate that his 1987
convictions did not render him ineligible for Proposition 36 relief. Archuleta is referring
to our Supreme Court’s recent conclusion that “two prior convictions arising out of a
single act against a single victim [cannot] constitute two strikes under the ‘Three Strikes’
law.” (Id. at p. 637.) Vargas held: “Defendant’s two prior felony convictions – one for
robbery and one for carjacking – were not only tried in the same proceeding and
committed during the same course of criminal conduct, they were based on the same act,
committed at the same time, and against the same victim. As we explain, because neither
the electorate (§ 1170.12) nor the Legislature (§ 667, subds. (b)-(i)) could have intended
that both such prior convictions would qualify as separate strikes under the Three Strikes
law, treating them as separate strikes is inconsistent with the spirit of the Three Strikes
law, and the trial court should have dismissed one of them and sentenced defendant as if
she had only one, not two, qualifying strike convictions.” (Id. at pp. 638-639.)
       Archuleta’s underlying argument is that, pursuant to Vargas, his 1987 conviction
for attempted murder during a robbery constituted only a single act and, therefore, he
should be eligible for Proposition 36 resentencing. But Archuleta is ignoring the
difference between his conduct and Vargas’s conduct. As Vargas explained: “ ‘[T]he
electorate and the Legislature rationally could – and did – conclude that a person who
committed additional violence in the course of a prior serious felony (e.g., shooting or
pistol-whipping a victim during a robbery, or assaulting a victim during a burglary)
should be treated more harshly than an individual who committed the same initial felony,
but whose criminal conduct did not include such additional violence.’ [Citation.] But
where, as here, an offender committed but a single act [i.e., taking the victim’s car by
force], we disagree she poses a greater risk to society merely because the Legislature has
chosen to criminalize the act in different ways.” (People v. Vargas, supra, 59 Cal.4th at


                                              5
p. 646.) Archuleta did not commit “a single act.” Rather, he used gratuitous violence
during the commission of a robbery.
      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
[120 S.Ct. 746]; People v. Kelly (2006) 40 Cal.4th 106, 110.)

                                      DISPOSITION

      The judgment is affirmed.


             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                EDMON, P. J.

We concur:



             ALDRICH, J.




             LAVIN, J.




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