Filed 1/20/16 P. v. Moore CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


THE PEOPLE,                                                          B265790

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA057591)
         v.

LAMOND DEE MOORE,

         Defendant and Appellant.




THE COURT:*
         Defendant and appellant Lamond Dee Moore (defendant) appeals from an order
denying his petition to recall his sentence and for resentencing under Propositions 36 and
47. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende), raising no issues. After defendant was notified of his counsel’s brief he
filed his own supplemental brief. We have reviewed the entire record and defendant’s
contentions. Finding no arguable issues, we affirm the judgment.
         On March 27, 2015, the trial court denied the resentencing petition without
hearing, upon finding that defendant’s conviction did not qualify for resentencing under


*
         BOREN, P.J., CHAVEZ, J., HOFFSTADT, J.
Penal Code section 1170.18, subdivision (a) or subdivision (f).1 In a letter to the superior
court filed June 23, 2015, defendant represented that his notice of appeal was mailed
from prison on April 28, 2015, and returned unopened. The superior court filed
defendant’s letter as the notice of appeal, and we deem it to be timely.
       More than 10 years ago, defendant was convicted of making criminal threats
(violation of section 422) attempting to dissuade a witness (violation of section 136.1)
and misdemeanor vandalism (violation of section 594, subdivision (a)), with findings that
he had sustained four prior felony convictions within the meaning of the “Three Strikes”
law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), as well as section 667, subdivision
(a). Defendant was sentenced to a total prison term of 90 years to life, and a concurrent
jail sentence for the misdemeanor offense.
       To qualify for resentencing under section 1170.18, subdivision (a) or (f), the
petitioner’s convictions must have been for felonies that would be classified as
misdemeanors if the statute been in effect at the time of the offense. Defendant’s
supplemental brief does not demonstrate that the superior court erred in finding that he
did not qualify for relief under Proposition 47. Nor does defendant claim that he
qualified for relief under Proposition 36.2 Instead, defendant contends: (1) that his
original sentence violated the Eighth Amendment prohibition against cruel and unusual
punishment; (2) that the sentencing court erred in running two second-strike terms
consecutively and should have instead dismissed one of his prior strike convictions; and
(3) that the prior felony convictions used to impose the second-strike terms in this case
were reduced to misdemeanors on April 15, 2015, thus no longer qualifying as strikes
under the Three Strikes law.3

1      All further statutory references are to the Penal Code, unless otherwise indicated.
2      Defendant’s petition was not filed within the two-year limitations period following
the effective date of Proposition 36, and did not include facts showing good cause to
excuse a late filing. (§ 1170.126, subd. (b).)
3     Defendant has attached a copy of his attorney’s letter stating that his 1996
convictions under sections 459 and 666 in San Luis Obispo County case No. F244428

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       Propositions 36 and 47 expressly provide that they are not “intended to diminish
or abrogate the finality of judgments in any case not falling within the purview of this
act.” (§ 1170.126, subd. (l); § 1170.18, subd. (n).) In essence, defendant’s first two
contentions amount to a collateral attack on the final judgment, which we affirmed on
appeal. (People v. Moore (Aug. 17, 2005, B179765, rev. den. Oct. 26, 2005) [nonpub.
opn.].) Absent special circumstances not shown here, we do not consider issues that
could have been raised in an earlier appeal. (See People v. Senior (1995) 33 Cal.App.4th
531, 536-538.) Further, as the sentencing court’s refusal to strike defendant’s prior
convictions was raised and rejected in defendant’s 2005 appeal, he may not relitigate it
now. (See People v. Barragan (2004) 32 Cal.4th 236, 252-253.)
       Defendant’s third contention is, in effect, a new petition based upon events arising
after the subject petition was filed and denied. Petitions under Propositions 36 and 47
must be filed in the first instance in the trial court. (§ 1170.126, subd. (b); § 1170.18,
subd. (a).) Regardless, as sections 422 and 136.1 remain felonies and do not qualify for
reduction to misdemeanors under section 1170.18, the trial court correctly found that
defendant does not qualify for resentencing.
       We have examined the entire record and are satisfied that defendant’s appellate
counsel has complied with her responsibilities and that no arguable issue exists. We
conclude that defendant has, by virtue of counsel’s compliance with the Wende procedure
and our review of the record, received adequate and effective appellate review of the
judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278;
People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
       The order denying defendant’s petition is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




had been reduced to misdemeanors. The record does not reflect that a 1996 conviction
was the basis of defendant’s second-strike sentences.

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