Filed 2/18/14 P. v. Hearon CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR




THE PEOPLE,                                                          B249335

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA251403)
         v.

STEVE HEARON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
         California Appellate Project, Jonathan B. Steiner, Executive Director
and Dee A. Hayashi, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Respondent.
       In the underlying action, the trial court denied appellant Steve Hearon’s
motion under Penal Code section 1170.126, which permits specified defendants
sentenced as three strike offenders to be resentenced pursuant to the Three Strikes
Reform Act of 2012 (Reform Act).1 After an appeal was noticed from that ruling,
appellant’s court-appointed counsel filed an opening brief raising no issues.
Following our independent examination of the entire record pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende), we conclude that no arguable issues exist
and, accordingly, affirm.


              FACTUAL AND PROCEDURAL BACKGROUND2
      In February 2004, a three-count information was filed, charging appellant in
count 1 with making criminal threats (§ 422), in count 2 with battery inflicting
serious bodily injury (§ 243, subd. (d)), and in count 3 with assault by means likely
to produce great bodily injury (§ 245, subd. (a)(1)). Accompanying the charges
were allegations that appellant had suffered three prior strikes under the “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and three prior felony
convictions (§ 667, subd. (a)(1)).
      At trial, the prosecution presented evidence that appellant approached James
Collins, who was speaking on a public telephone, and punched him with both
hands, thereby causing factures and other injuries to Collins’s face and nose. A

1     All further statutory references are to the Penal Code.
2       As appellant has submitted a letter brief raising contentions related to his prior
appeal from his judgment of conviction, we take judicial notice of our opinion in that
appeal (People v. Hearon (Jan. 18, 2006, B176310) [nonpub. opn.]). (Evid. Code,
§§ 452, subd. (a), 459, subd. (a); see People v. Lockwood (2013) 214 Cal.App.4th 91, 95,
fn. 2; People v. Finkel (1949) 94 Cal.App.2d 813, 815, disapproved on another ground in
People v. McFarland (1962) 58 Cal.2d 748, 762.) Our statement of facts is based, in
part, on that opinion.



                                              2
jury found appellant guilty of battery with serious bodily injury (count 2) and
assault by means likely to produce great bodily injury (count 3), but found him not
guilty of making criminal threats (count 1). The jury also found true the allegation
that he had suffered convictions for three prior felonies: second degree murder in
1988, second degree robbery in 1978, and first degree robbery in 1977. The trial
court imposed a term of 25 years to life under the Three Strikes law on count 2,
and stayed the imposition of punishment on count 3 (§ 654). In an unpublished
opinion, we affirmed appellant’s judgment of conviction.
        In 2012, the electorate enacted the Reform Act by approving Proposition 36.
(People v. Yearwood (2013) 213 Cal.App.4th 161, 169-170 (Yearwood).) The
Reform Act amended the Three Strikes law to provide that absent specified
exceptions, an offender with two or more prior strikes is to be sentenced as a two
strike offender unless the new offense is also a strike, that is, a serious or violent
felony.3 (See Yearwood, supra, 213 Cal.App.4th at pp. 169-170.) The Reform Act
also added section 1170.126, which creates a postconviction resentencing
proceeding for specified inmates sentenced under the prior version of the Three
Strikes law. (Yearwood, supra, at pp. 169-170.)
        On February 15, 2103, appellant filed a petition for resentencing under
section 1170.126. On March 19, 2013, the trial court denied the petition with
prejudice, concluding that appellant’s prior conviction for murder rendered him
ineligible for relief under that provision. This appeal followed.4


3      Generally, an offense is a “strike” if it is either a “violent felony” under section
667.5, subdivision (c), or a “serious felony” under section 1192.7, subdivision (c).
(People v. Blackburn (1999) 72 Cal.App.4th 1520, 1525.)
4      The appealability of the denial of a petition under section 1170.126 is presently
before the Supreme Court. (Teal v. Superior Court (2013) 217 Cal.App.4th 308, review
granted July 31, 2013, S211708.) Nonetheless, the trial court’s ruling appears to be an
(Fn. continued on next page.)


                                                3
                                    DISCUSSION
      After an examination of the record, appellant’s court-appointed counsel filed
an opening brief raising no issues, and requested this court to review the record
independently pursuant to Wende. In addition, counsel advised appellant of his
right to submit by supplemental brief any contentions or argument he wished the
court to consider. In response, appellant has submitted a letter brief identifying
several potential issues. As explained below, our independent review of the record
discloses “no arguable errors that would result in a disposition more favorable to
[appellant].” (People v. Alford (2010) 180 Cal.App.4th 1463, 1467.)
      Appellant contends he is eligible for resentencing under section 1170.126.
We disagree. Under that statute, “[a] prisoner is eligible for resentencing as a
second strike offender if all of the following are shown: (1) the prisoner is serving
an indeterminate life sentence for a crime that is not a serious or violent felony; (2)
the life sentence was not imposed for any of the offenses appearing in sections 667,
subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C); and (3) the inmate has no
prior convictions for any of the offenses appearing in clause (iv) of section 667,
subdivision (e)(2)(C) or clause (iv) of section 1170.12, subdivision (c)(2)(C).”
(Yearwood, supra, 213 Cal.App.4th at p. 170; § 1170.126, subd. (e).) Here, the
trial court found that appellant did not satisfy requirement (3).
      The record conclusively supports that determination. Under requirement (3),
inmates are not eligible for resentencing if they have suffered “a prior serious
and/or violent felony conviction” for “[a]ny homicide offense . . . defined in
[s]ections 187 to 191.5, inclusive.” (§§ 667, subd. (e)(2)(C)(iv)(IV), 1170.12,

appealable order after judgment under People v. Totari (2002) 28 Cal.4th 876. There, the
Supreme Court stated that the denial of a statutory motion to vacate a judgment of
conviction is ordinarily appealable when the motion is based on a ground not reviewable
in an appeal from the judgment. (Id. at p. 882.)



                                            4
subd. (c)(2)(C)(iv)(IV).) At appellant’s 2004 trial, the jury determined that
appellant “was previously convicted of a violation of . . . [s]ection 187, [m]urder, a
felony, on or about October 27, 1988.”5 The trial court thus correctly denied
appellant’s petition for resentencing under section 1170.126.
      Appellant also identifies several potential issues that cannot be resolved in
the appeal before us. Ordinarily, in an appeal from an order following a judgment
of conviction, a criminal defendant is precluded from asserting contentions “that
could have been reviewed on timely appeal from the judgment.” (People v.
Howerton (1953) 40 Cal.2d 217, 220.) Among the contentions that may not be
raised are challenges to the sufficiency of the evidence supporting the judgment.
(Ibid.) Here, appellant asserts that the offense underlying his 1988 murder
conviction was actually voluntary manslaughter. Nothing before us supports that
contention, as the limited record on appeal contains none of the evidence submitted
at appellant’s trial. Because appellant’s contention attacks the sufficiency of the
evidence supporting the jury’s finding that he had suffered a conviction for murder,
it is beyond the scope of our review.
      Additionally, appellant contends a three strike sentence was improperly
imposed on his conviction for battery with serious bodily injury because that
offense is neither a violent nor serious felony. However, for purposes of the Three
Strikes law, battery with serious bodily injury constitutes a serious felony when the
prosecution establishes that the defendant personally inflicted the injury. (People
v. Bueno (2006) 143 Cal.App.4th 1503, 1508.) Because appellant’s contention
requires an inquiry into the evidence presented at his trial, it is not cognizable in

5      We note that second degree murder is both a “violent felony,” as defined under
section 667.5, subdivision (c), and a “serious felony,” as defined in section 1192.7,
subdivision (c). (People v. Carmony (2005) 127 Cal.App.4th 1066, 1081; People v.
Eshelman (1990) 225 Cal.App.3d 1513, 1515, 1524.)


                                             5
this appeal.
      We reach a similar conclusion regarding appellant’s related contention,
namely, that his appellate counsel rendered ineffective assistance during his prior
appeal by failing to argue that the battery in question constituted neither a violent
nor a serious felony. Generally, claims of ineffective assistance are not properly
raised in an appeal when the record sheds no light on counsel’s decisions. (People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) That is the case here. In sum,
because the record demonstrates that appellant’s petition was properly denied, we
conclude that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at
p. 441.)




                                            6
                                   DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                MANELLA, J.


We concur:




WILLHITE, Acting P. J.




EDMON, J.*




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.




                                            7
