Filed 2/22/16 P. v. Green CA5




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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070708
         Plaintiff and Respondent,
                                                                         (Kern Super. Ct. No. SC069859A)
                   v.

RICHARD DEWAYNE GREEN,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
         William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




         *   Before Kane, Acting P.J., Poochigian, J. and Franson, J.
                                       INTRODUCTION
          Appellant/defendant Richard Dewayne Green’s petition for recall of his third
strike sentence was denied. On appeal, his appellate counsel has filed a brief that
summarizes the facts with citations to the record, raises no issues, and asks this court to
independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We
affirm.
                        FACTUAL AND PROCEDURAL HISTORY
          On March 5, 1997, a deputy saw defendant and knew he was wanted on an
outstanding bench warrant. The deputy arrested defendant and searched him. Defendant
was in possession of a bindle which contained five off-white rocks, later determined to be
0.35 grams of methamphetamine.
          On July 3, 1997, defendant pleaded no contest to possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)), and admitted two prior strike
convictions. He entered his plea on condition that the sentencing court would consider
dismissing his prior strike convictions pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero). Defendant’s two prior strike convictions were both for
violations of Penal Code section 288, committed in 1975 and 1980.
          On September 4, 1997, defendant was sentenced to the third strike term of 25
years to life.
Petition for recall
          On August 11, 2014, defendant filed a petition for recall of his third strike
sentence pursuant to Penal Code section 1170.126 (Proposition 36), and asserted he met
the criteria because he was not convicted of a serious or violent felony, and he was not
statutorily excluded from relief.
          On August 21, 2014, the People filed opposition and argued defendant was
ineligible for relief because his two prior strike convictions were for violations of Penal
Code section 288.

                                                2.
       On December 4, 2014, the court held a hearing on the petition. The prosecutor
argued that defendant was ineligible for relief because his prior convictions were for
either sexually violent offenses and/or lewd and lascivious acts upon a child under the
age of 14 years. The court found defendant was ineligible for resentencing and denied
his petition.
       On December 26, 2014, defendant filed a timely notice of appeal.
                                         DISCUSSION
       As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on March 18, 2015, we
invited defendant to submit additional briefing. To date, he has not done so.
       After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                     DISPOSITION
       The judgment is affirmed




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