Filed 6/25/13 P. v. Hidalgo CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047998

         v.                                                            (Super. Ct. No. 95CF0222)

JOSE RENE HIDALGO,                                                     OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County,
Craig E. Robison, Judge. Affirmed.
                   John L. Dodd, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.


                                          *                  *                  *
                                      INTRODUCTION
              Defendant Jose Rene Hidalgo appeals from the order denying his petition to
recall his 35-year-to-life sentence pursuant to the procedures set forth under Penal Code
section 1170.126, added by Proposition 36, the Three Strikes Reform Act of 2012. (All
further statutory references are to the Penal Code unless otherwise specified.) We
appointed counsel to represent Hidalgo on appeal. Appointed appellate counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts
of the case and requesting that we review the entire record. Pursuant to Anders v.
California (1967) 386 U.S. 738 (Anders), appointed appellate counsel suggests we
consider whether Hidalgo’s petition was properly denied. This court provided Hidalgo
30 days to file written argument on his own behalf. The 30-day time period has passed,
and Hidalgo has not filed anything on his own behalf.
              We have examined the entire record and appointed appellate counsel’s
Wende/Anders brief; we find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We
therefore affirm.
                                      BACKGROUND
              In 1995, a jury found Hidalgo guilty of committing one count each of first
degree residential burglary in violation of sections 459, 460, subdivision (a), and 461.1;
petty theft with a prior conviction in violation of sections 666 and 484, subdivision (a)
through 488; and unlawful driving or taking of a vehicle in violation of Vehicle Code
section 10851, subdivision (a). The trial court found Hidalgo suffered three prior serious
felonies within the meaning of section 667, subdivision (a)(1). The court imposed a total
prison term of 90 years to life, by imposing a 25-year-to-life term for each of Hidalgo’s
three offenses, plus a consecutive term of 15 years for prior conviction enhancements.
              A panel of this court affirmed Hidalgo’s judgment of conviction, but
reversed the sentence and remanded the case for resentencing with directions that the trial
court exercise its discretion in determining whether it should strike Hidalgo’s prior

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convictions for purposes of sentencing pursuant to People v. Superior Court (Romero)
                        1
(1996) 13 Cal.4th 497. On remand, the trial court reduced Hidalgo’s prison sentence to
a total term of 35 years to life, by imposing a 25-year-to-life term for the first degree
burglary offense and ordering that the sentences imposed for the petty theft with a prior
conviction and the unlawful driving or taking of a vehicle offenses (a two-year term each)
run concurrently with the term imposed for the first degree burglary offense. The court
also struck one of the prior conviction enhancements for purposes of sentencing.
              On November 14, 2012, Hidalgo filed a petition for recall of sentence
pursuant to section 1170.126, subdivision (b). The trial court denied his petition.
                   2
Hidalgo appealed.
                                         DISCUSSION
              In People v. Hurtado, supra, 216 Cal.App.4th at page 944, the appellate
court recently explained: “Proposition 36, also known as the Three Strikes Reform Act
of 2012, was approved by the voters on November 6, 2012, and went into effect the next
day. It amended sections 667 and 1170.12 so that an indeterminate term of 25 years to
life in prison is applied only where the ‘third strike’ offense is a serious or violent felony
or the prosecution pleads and proves an enumerated factor. (§§ 667, subd. (e)(2)(C),
1170.12, subd. (c)(2)(C).) [¶] Proposition 36 also created 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.’ (§ 1170.126, subd. (a).) Such a person may
file a petition to recall his or her sentence and be sentenced as a second strike offender.
(§ 1170.126, subd. (b).) An inmate is eligible for such resentencing if none of his or her
       1
         Pursuant to Evidence Code sections 459, subdivision (a) and 452,
subdivision (d), on our own motion, we take judicial notice of People v. Hidalgo
(June 17, 1997, G018573) (nonpub. opn.).
       2
         An order denying a petition to recall a sentence under section 1170.126 is
appealable. (People v. Hurtado (2013) 216 Cal.App.4th 941, 944-945.)

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commitment offenses constitute serious or violent felonies and none of the enumerated
factors disqualifying a defendant for resentencing under Proposition 36 apply.
(§ 1170.126, subd. (e).) Resentencing of eligible inmates may nonetheless be refused if
the trial court, ‘in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’ (§ 1170.126, subd. (f).) Subdivision (g) of
section 1170.126 sets forth several factors that a trial court may consider in exercising
that discretion.” (Italics added.)
              Here, Hidalgo’s commitment offenses included a conviction for first degree
burglary, which is a serious felony under section 1192.7, subdivision (c)(18). Hidalgo
was therefore not eligible for resentencing under section 1170.126, subdivisions (b) and
(e). We find no error.


                                        DISPOSITION
              The order is affirmed.




                                                  FYBEL, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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