Filed 10/1/13 P. v. Linares CA5




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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065191
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. 00-52969-2 &
                   v.                                                               VHC254701)

PABLO GARCIA LINARES,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L.
Hicks, Judge.
         Mark J. Shusted, 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 Wiseman, Acting P.J., Kane, J. and Detjen, J.
                             STATEMENT OF THE CASE
       On July 11, 2011, appellant Pablo Garcia Linares filed a petition for writ of habeas
corpus in the Tulare County Superior Court. In his petition, Linares represented that he
was sentenced, on May 18, 2000, to 28 years to life in prison under the “Three Strikes”
law for a current offense of auto theft (Veh. Code, § 10851) with two prior strike
convictions. Linares alleged that his 1995 robbery conviction did not qualify as a strike
because there was no gun use enhancement; hence, his current sentence was
unauthorized. Linares provided a copy of the abstract of judgment in his 1995 case; it
showed he pled to one count of second degree robbery with no firearm enhancement.
       On July 18, 2011, the petition was summarily denied. The trial court found
Linares failed to state a prima facie case for relief, in that, under Penal Code
section 1192.7, subdivision (c)(19), robbery of either degree constitutes a serious felony
and, therefore, a strike; the issue could have been raised on appeal; and Linares delayed
filing the petition unreasonably and without legitimate excuse.
       On August 26, 2011, Linares filed a petition for writ of habeas corpus with this
court, reiterating his allegations.1 On September 8, 2011, his petition was summarily
denied by order.
       On or about May 14, 2012, Linares submitted a petition for writ of error coram
nobis to the Tulare County Superior Court, in which he reiterated the allegations and
claims made in his earlier habeas petition and asked to be resentenced. On May 23,
2012, the petition was denied on the same grounds as the habeas petition. Linares filed a
timely notice of appeal.

1      Pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a),
we take judicial notice of our record in case No. F063151, In re Pablo Garcia Linares.
We do so only to ensure the relevant chronology is complete; it is not a matter “of
substantial consequence to the determination of” the present action. (See Evid. Code,
§ 459, subd. (c).)



                                              2.
                                           FACTS
       The facts underlying Linares’s current conviction are not contained in the record
on appeal. According to Linares, his 1995 conviction resulted when he was originally
charged with carjacking, but was offered a plea bargain of second degree robbery with no
gun use enhancement.
                            APPELLATE COURT REVIEW
       Linares’s appointed appellate counsel has filed an opening brief that summarizes
the pertinent facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel, stating that Linares was advised he could file his
own brief with this court. By letter dated October 2, 2012, we invited Linares to submit
additional briefing. To date, he has not done so, although he did ask this court to file on
his behalf a petition for recall of sentence under Penal Code section 1170.126. We
declined.
       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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