Filed 7/8/16 P. v. Cowan 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F070422
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. SC078781A)
                   v.

STUART LELAND COWAN,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order 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 Franson, Acting P.J., Peña, J. and Smith, J.
          Appellant Stuart Leland Cowan appeals from the court’s denial of his petition for
recall of sentence pursuant to Penal Code section 1170.126.1 Following independent
review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we
affirm.
                        FACTUAL AND PROCEDURAL HISTORY
           On October 29, 1999, Bakersfield police officers stopped a vehicle in which
Cowan was a passenger. During the stop, the officers found a dagger eight to nine inches
long in Cowan’s waistband and two syringes in Cowan’s backpack. A subsequent blood
draw from Cowan tested positive for amphetamines, barbiturates, and opiates.
          On January 21, 2000, a jury convicted Cowan of possession of a dirk or dagger
(former § 12020, subd. (a)), possession of narcotics paraphernalia (Health & Saf. Code,
§ 11364), and being under the influence of a controlled substance (Health & Saf. Code,
§ 11550, subd. (a)). On January 24, 2000, the court found true three prior prison term
enhancements (§ 667.5, subd. (b)) and allegations that Cowan had three prior convictions
within the meaning of the Three Strikes law (§ 667, subds. (b)-(i)).
          On March 1, 2000, the court sentenced Cowan to 25 years to life on his possession
of a dagger conviction, plus three one-year prior prison term enhancements.
          On November 6, 2012, California voters passed the Three Strikes Reform Act of
2012 (the Act; § 1170.126) which became effective the next day. In pertinent part, the
Act establishes a procedure for an offender serving an indeterminate life sentence for a
third strike conviction that is not deemed a serious and/or a violent felony to file a
petition for recall of sentence and to be resentenced as a second strike offender. (Teal v.
Superior Court (2014) 60 Cal.4th 595, 596-597, § 1170.126, subd. (f).)
          On August 7, 2014, Cowan filed a Petition for Recall of Sentence pursuant to
section 1170.126.

1         All further statutory references are to the Penal Code, unless otherwise indicated.


                                                2
       On August 19, 2014, the district attorney filed a response arguing that Cowan was
ineligible for resentencing pursuant to that section because he was armed with a weapon
when he committed the possession of a dagger offense. (Cf. People v. Osuna (2014) 225
Cal.App.4th 1020, 1030-1032 [defendant convicted of possession of a firearm by a felon
was armed with a firearm because of the firearm defendant was holding at the time].)
       On October 28, 2014, the court agreed with the prosecutor and denied Cowan’s
motion.
       Cowan’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (Wende, supra, 25 Cal.3d 436.) However, in a document filed on April 24, 2015,
Cowan raises three issues relating to his 2000 convictions for possession of a dirk or
dagger. These contentions are not cognizable because they should have been raised in an
appeal filed 60 days from the date he was sentenced in that matter. (Cal. Rules of Court,
rule 8.308 [notice of appeal must be filed within 60 days after the rendition of the
judgment]; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [the failure to file a
timely appeal forfeits a claim because it deprives the appellate court of jurisdiction].)
Further, following an independent review of the record, we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.




                                              3
