Filed 11/20/13 P. v. Cardenas-Rodriguez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058389

v.                                                                       (Super.Ct.No. CR67529)

MANUEL ISAIAS CARDENAS-                                                  OPINION
RODRIGUEZ,

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Robert G. Spitzer and

Becky Dugan, Judges. Affirmed.

         Alan Yockelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         In 1997, defendant and appellant Manuel Isaias Cardenas-Rodriguez pleaded

guilty to several offenses related to possession of controlled substances, together with

offenses and enhancements relating to possession of firearms (substantive offense of


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possession of firearms by an ex-felon, and enhancements of possession of firearms in

connection with possession of drugs). Defendant was sentenced as a third striker to a

term of 26 years to life in state prison.

       In 2012, after passage of the Three Strikes Reform Act of 2012 (Proposition 36),

reforming the California “Three Strikes” law, defendant filed a petition to recall his

sentence and for resentencing. The trial court denied defendant’s resentencing petition,

finding him ineligible for resentencing under Penal Code section 1170.126.

       Defendant has filed a notice of appeal. We affirm the trial court’s ruling.

                         FACTS AND PROCEDURAL HISTORY

       The salient events underlying the convictions took place in 1997. Sheriff’s

deputies received a tip from a confidential informant, to the effect that defendant was

living in a converted garage, and would trade methamphetamine or heroin for guns, tools,

or other property. Deputies conducted a parole search, which turned up some heroin

packaged in four bindles hidden near the shower. Defendant had some heroin and some

marijuana in his jacket pocket. Deputies also found a .22-caliber revolver and a nine-

millimeter handgun, as well as electronic and triple-beam scales (bearing traces of white

powder), and almost $2,000 in cash in various places in the house.

       As a result, defendant was charged in count 1 with possession of heroin for sale

(Health & Saf. Code, § 11351), together with a gun possession enhancement (Pen. Code,

§ 12022, subd. (c)), in count 2 with possession of methamphetamine for sale (Health &

Saf. Code, § 11378), together with another gun possession enhancement (Pen. Code,



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§ 12022, subd. (c)), in counts 3 and 4 with being a felon in possession of a firearm (Pen.

Code, § 12021, subd. (a)(1)), in count 5 with possession of methamphetamine while

armed with a loaded firearm (Health & Saf. Code, § 11370.1), and in count 6 with

possession of heroin while armed with a loaded firearm (ibid.). The information also

alleged two prior serious offenses and two strike priors (both types of prior offense

allegations were based on the same two prior convictions for residential burglary).

       Defendant ultimately pleaded guilty to the court to counts 1, 2, 3, 5, and 6, while

count 4 (one of the felon in possession of a firearm counts) was dismissed. Defendant

also admitted the firearm enhancements and the strike priors. The plea specified that

defendant would receive a three strikes life sentence, with a minimum of 26 years. The

court followed the sentence recommendation.

       Since the time of sentencing, defendant has been serving his sentence in state

prison. In December 2012, after the passage of Proposition 36, reforming the California

Three Strikes law, defendant wrote to his former attorney, seeking assistance in filing a

petition for resentencing under Proposition 36. Defendant stated that he felt he qualified

for resentencing, because he viewed his 1997 (third-strike) offenses as nonviolent. The

court accepted defendant’s letter for filing as a petition for resentencing.

       The People opposed defendant’s petition, on the ground that the current conviction

did not qualify for resentencing, because defendant was armed with a firearm in the

commission of the offenses. The People also alleged that defendant posed a risk of

danger to public safety. The trial court found defendant ineligible for resentencing under



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Penal Code section 1170.126, because defendant had admitted being armed with a

firearm with respect to some of the offenses to which he pleaded guilty.

       Defendant appealed from the trial court’s order denying his petition for

resentencing.

                                        ANALYSIS

       Defendant has appealed, and this court has appointed counsel to represent him.

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 statement of the case, and identifying one possible arguable issue on appeal:

whether the trial court properly denied defendant’s petition for three strikes resentencing.

       Defendant has been afforded the opportunity to file a personal supplemental brief,

which he has done. He raises two potential arguable issues: whether the guilty pleas

were involuntary because defendant was not advised of the immigration consequences of

his plea, and whether he was wrongfully deprived of the benefit of being resentenced.

       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.

       Here, it is plain that the trial court properly denied defendant’s petition for three

strikes resentencing. Three strikes resentencing under Proposition 36 is intended to

benefit those three strikes offenders whose third-strike offenses are not violent or

dangerous. Under Penal Code section 1170.12, subdivision (c)(2)(C)(iii), a person is not

eligible for more lenient resentencing under the reform act if, “[d]uring the commission



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of the current offense, the defendant used a firearm, was armed with a firearm or deadly

weapon, or intended to cause great bodily injury to another person.” Defendant here

expressly admitted that he was armed with a firearm during the commission of some of

the offenses, and admitted enhancements that he was armed with a firearm in the

commission of others. The language of the Proposition 36 eligibility provisions is plain,

as the trial court determined, and defendant is statutorily ineligible for resentencing under

Proposition 36’s scheme.

       Defendant raises a similar argument under the rubric that it was a part of his plea

bargain that he would receive the benefit of resentencing, if the Three Strikes law were

amended in the future. Defendant thus characterizes the issue as one of a violation of a

plea agreement. There was no plea bargain, as such. The trial court expressly pointed

out that the guilty pleas were made to the court, and not as a result of any plea bargain

with the People. It was a straight plea to the court. There was therefore no “plea

bargain” that could be breached. Moreover, there is nothing in the record whatsoever to

support defendant’s claim that he made the bargain “on the premise that if the [] Three

Str[i]kes Law . . . was to be amended in the future that [he] would receive the benefit of

being resentenced.” Whether defendant would be eligible for resentencing upon

amendment of the Three Strikes law is dependent entirely on the provisions of any such

amendment. As noted, the statutory provisions of Proposition 36 expressly provide that

defendant is not eligible for resentencing.




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       As to defendant’s claim that his plea was involuntary because the court failed to

advise him that he could be deported as a consequence of the guilty plea, we find it is

without merit. First, this issue should have been raised on initial appeal from the

judgment in 1997. It is too late to raise it now. (People v. Senior (1995) 33 Cal.App.4th

531, 536.) Second, the record belies the claim. The trial court did expressly advise

defendant, on the record, during the taking of the plea, that he could be deported as a

result of the plea or conviction, if he was not a citizen of the United States.

       After due examination of the record, we have discovered no arguable issues.

                                       DISPOSITION

       The order denying defendant’s petition for resentencing is affirmed. To the extent

that the appeal purports to challenge the judgment, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 McKINSTER
                                                                                  Acting P. J.
We concur:



RICHLI
                           J.



CODRINGTON
                           J.




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