Filed 1/15/14 P. v. Downs CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059248

v.                                                                       (Super.Ct.No. FSB13463)

RONALD JAMES DOWNS,                                                      OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Neil Auwarter, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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       Defendant and appellant Ronald James Downs appeals after the trial court denied

his petition for recall of his sentence under the Three Strikes Reform Act of 2012 (the

Reform Act). We affirm.

                         FACTS AND PROCEDURAL HISTORY

       In 1997, defendant was charged as a third striker under the former version of the

“Three Strikes” law. Defendant’s offense was a charge of petty theft with a prior, in

violation of Penal Code section 666. After a bench trial, defendant was convicted. The

court also found true allegations that defendant had suffered two prior strike convictions:

for murder in 1975; and for robbery in 1980. The court imposed a three strikes sentence

of 25 years to life for the current offense.

       After passage of the Reform Act in November of 2012, defendant sent a letter to

the court requesting resentencing under the ameliorative provisions of the Reform Act.

In November 2012, the voters passed the Reform Act, which provides that, with certain

exceptions, a three strikes term of 25 years to life may be imposed only if the

defendant’s current offense is a serious or violent felony. For those persons serving

previously imposed sentences, Penal Code section 1170.126 establishes a statutory

procedure to seek resentencing. Subdivision (b) of the statute establishes that a person

serving an indeterminate term of life imprisonment under the Three Strikes law for a

conviction based on “a felony or felonies that are not defined as serious and/or violent

felonies . . . may file a petition for a recall of the sentence . . . .” Subdivision (d) of the

statute requires a petition for recall of a sentence to specify both (1) the currently charged



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felonies that resulted in the current sentence and (2) the prior strike convictions that were

“alleged and proved” under the Three Strikes law.

       The trial court here treated defendant’s letter as a petition, and held a hearing to

consider whether defendant would be eligible for relief under the Reform Act. The court

denied defendant’s petition on the ground that one of his strike priors was for murder.

       Defendant’s public defender filed a timely notice of appeal after this ruling.

                                        ANALYSIS

       Upon defendant’s appeal, this court appointed counsel to represent him.

Appointed appellate counsel has filed a brief under the authority of People v. Wende

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396,

18 L.Ed.2d 493], setting forth a brief statement of the case, but making no argument as to

any specific issues. Counsel has requested this court to undertake a review of the entire

record. Defendant has been offered an opportunity to file a personal supplemental brief,

which he has not done.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the entire record and find no arguable issues.

       Appointed appellate counsel has suggested three possible potentially arguable

issues: (1) whether the denial of defendant’s petition is an appealable order; (2) whether

the trial court erred in denying defendant’s petition for recall of his sentence; and

(3) whether the amendment in 2010 to Penal Code section 666, now requiring proof of




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three prior theft-related convictions to establish the offense of petty theft with a prior,

affects defendant’s conviction of his current offense.

       As appellate counsel has pointed out, the issue of appealability of an order denying

a petition to recall the sentence is on review in the California Supreme Court in Teal v.

Superior Court (2013) 217 Cal.App.4th 308 (review granted July 31, 2013, S211708 [see

304 P.3d 162; 159 Cal.Rptr.3d 672]; 2013 Cal. LEXIS 6640). However, we note that a

defendant is statutorily authorized to appeal from any order made after judgment if it

affects the defendant’s substantial rights. (Pen. Code, § 1237, subd. (b).)

       As to the denial of the petition itself, Penal Code section 1170.126, subdivision

(e), provides in relevant part, that an inmate is eligible for resentencing if: “(3) The

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.” Penal Code

section 667, subdivision (e)(2)(C)(iv)(IV) lists “[a]ny homicide offense, including any

attempted homicide offense, defined in Sections 187 to 191.5, inclusive,” as one of the

disqualifying prior offenses. Penal Code section 1170.12, subdivision (c)(2)(C)(iv)(IV)

does the same. One of defendant’s prior strike convictions was for murder, a

disqualifying strike offense. The trial court properly determined that defendant was not

eligible for resentencing under the Reform Act.

       At the time of defendant’s conviction in 1997, proof of only one prior theft-related

conviction was required to support conviction of petty theft with a prior. Defendant was



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duly convicted of the offense as defined at the time, which did properly subject him to

three strikes treatment. Generally, unless a contrary intent is indicated, it is presumed

that an amended statute is intended to apply prospectively only. (Pen. Code, § 3; see

People v. Floyd (2003) 31 Cal.4th 179, 184.) An exception exists, however, when a

penal statute has been amended to lessen the punishment therefor. (In re Estrada (1965)

63 Cal.2d 740.) The California Supreme Court held that, where a statute has been

amended to lessen the punishment for an offense and there is no clear indication of an

intent to apply the amendment prospectively only, it must be presumed that the

Legislature intended the mitigated punishment to apply to all judgments not yet final as

of the effective date of the amended statute. (Id. at pp. 744–747.) Here, even if the

amendment to Penal Code section 666 was ameliorative, defendant was not eligible for

the benefit of the Estrada rule because his conviction was long since final at the time of

the amendment. Amendment of the statute years later did not affect the validity of

defendant’s conviction at the time.1




       1   The digest of the proposed amendment stated: “Existing law provides that petty
theft is a misdemeanor, except that every person who, having been convicted of petty
theft, grand theft, auto theft, burglary, carjacking, robbery, or receiving stolen property
and having served time in a penal institution therefor, is subsequently convicted of petty
theft, is punishable by imprisonment in a county jail not exceeding one year, or in the
state prison. [¶] This bill would require that most persons be convicted 3 or more times
of a qualifying offense to be subject to imprisonment in the state prison for petty theft.”
(Pen. Code, § 666, as amended by Stats. 2010, ch. 219, § 15.) The legislation was an
urgency statute (known as the Chelsea King Child Predator Prevention Act of 2010), and
effective immediately, September 9, 2010. (Stats. 2010, ch. 219, § 29.)


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       None of the suggested issues is meritorious or warrants reversal. (Cal. Const.,

art. VI, § 13.)

                                     DISPOSITION

       The order denying defendant’s petition for recall of sentence is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               McKINSTER
                                                                               Acting P. J.
We concur:



RICHLI
                          J.



MILLER
                          J.




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