Filed 5/6/16 P. v. Olague CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F070480
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF103325A)
                   v.

EDWARD OLAGUE,                                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.

         Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-



         *Before Gomes,        Acting P.J., Kane, J. and Peña, J.
                                        INTRODUCTION
        On August 6, 2014, the Kern County Public Defender’s Office filed a petition to
have defendant Edward Olague resentenced pursuant to Proposition 36 and Penal Code
section 1170.126.1 On November 17, 2014, the trial court denied defendant’s petition for
resentencing, finding him ineligible under Proposition 36. Defendant’s appellate counsel
has filed a brief stating there are no issues and seeks independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm the judgment.
                                 FACTS AND PROCEEDINGS
        In October 2003, at the conclusion of a jury trial in Kern County case
No. BF103325A, defendant was found guilty of felony battery on a custodial officer
(§ 243.1) and felony obstruction of an executive officer (§ 69). The jury also found five
prior serious or violent felony convictions were true pursuant to the three strikes law.
The prior felony convictions included three robberies (§ 211), forcible oral copulation by
force or fear (§ 288a, subd. (c)), and battery with serious bodily injury (§ 243, subd. (d)).
Defendant was sentenced to a prison term of 25 years to life.
        After defendant filed his petition for resentencing, the People filed opposition,
noting defendant’s conviction for violating section 288a, subdivision (c) made him
ineligible for resentencing under Proposition 36. The People made available our opinion
in defendant’s appeal from his earlier conviction, inter alia, for forcible oral copulation
by means of force or fear. (People v. Olague (Oct. 19, 1988, F008691) [nonpub. opn.].)
The facts of our earlier opinion state that while incarcerated in the Kern County jail on
October 22, 1986, defendant and other inmates attacked and beat cellmate William D.
Defendant later asked William D. to orally copulate him. William D. complied out of
fear.



        1Unless   otherwise indicated, all statutory references are to the Penal Code.


                                                  2.
       Without objection, both parties relied on our opinion in People v. Olague, supra,
F008691. Based on the description of defendant’s act of oral copulation by force or fear,
the trial court denied defendant’s petition for resentencing, finding him ineligible under
Proposition 36.
       Under section 1170.126, subdivision (e)(3), a defendant is eligible for
resentencing if he or she has no prior convictions as set forth in section 667, subdivision
(e)(2)(C)(iv)(I) or 1170.12, subdivision (c)(2)(C)(iv)(I) for a sexually violent offense as
defined in Welfare and Institutions Code section 6600. Subdivision (b) of Welfare and
Institutions Code section 6600 defines, among other offenses, a violation of Penal Code
section 288a as a sexually violent offense.
                              APPELLATE COURT REVIEW
       Defendant’s appointed appellate counsel has filed an opening brief summarizing
the pertinent facts, raising no issues, and requesting this court to review the record
independently. (People v. Wende, supra, 25 Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating defendant was advised he could
file his own brief with this court. By letter on May 15, 2015, we invited defendant to
submit additional briefing.
       Defendant replied with a letter stating the trial court referred to the preliminary
hearing transcript in his prior conviction for section 288a, subdivision (c) and should
have referred to the trial transcript instead. The trial court, however, only referred to the
presence of the preliminary hearing transcript and expressly stated it was not going to
rely on the preliminary hearing. The trial court expressly relied on our appellate decision
in People v. Olague, supra, F008691. Both parties, including defendant’s counsel, relied
on our prior opinion as well.
       Defendant further argues that the record of his conviction did not show the nature
of the conduct underlying his conviction. We disagree. Again, People v. Olague, supra,
F008691 unequivocally states the victim orally copulated defendant in jail out of fear

                                              3.
after being beat up by him and other inmates. There is no merit to either contention
raised by defendant in his letter brief.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                       DISPOSITION
       The judgment is affirmed.




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