Filed 8/16/16 P. v. Lockheart CA2/7

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B269415

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA023906)
         v.

SANDY CLINTON LOCKHEART,

         Defendant and Appellant.




                   APPEAL from an order of the Superior Court of Los Angeles County,
Christopher G. Estes, Judge. Affirmed.


                   Daniel Milchiker, under appointment by the Court of Appeal, for Defendant
and Appellant.


                   No appearance for Plaintiff and Respondent.


                                           ______________________
                  FACTUAL AND PROCEDURAL BACKGROUND


        On October 8, 2003 a jury found Sandy Clinton Lockheart guilty of two counts of
second degree robbery (Pen. Code,1 § 211 (counts 1 & 2)) and two counts of assault with
a semiautomatic firearm (§ 245, subd. (b) (counts 3 & 4)). The jury also found true the
allegations that Lockheart had personally used a firearm (§§ 12022.5, subd. (a)(1),
12022.53, subd. (a)(4), 12022.53, subd. (b)) in connection with the crimes (a handgun in
the robberies and a semiautomatic handgun in the other crimes). The court found true the
allegation that Lockheart had served two prior prison terms for felonies (§ 667.5, subd.
(b)).
        On January 9, 2004 the trial court sentenced Lockheart to an aggregate state prison
term of 24 years four months, consisting of the upper term of nine years for assault with a
semiautomatic firearm (count 3) plus 10 years for the firearm-use enhancement under
section 12022.5, subdivision (a)(1); and a consecutive term of two years (one-third the
middle term of six years) for assault with a semiautomatic firearm (count 4), plus 16
months (one-third the middle term of four years) for the firearm-use enhancement under
section 12022.5, subdivision (a)(1), plus two one-year terms for the prior prison term
enhancements. The court stayed imposition of sentence on the remaining counts and
enhancements pursuant to section 654.2
        On August 12, 2015 the trial court granted Lockheart’s application to reclassify
his prior felony conviction for violating Health and Safety Code section 11377,


1       Undesignated statutory references are to the Penal Code.
2      Although the record does not include transcripts of the trial and the sentencing
hearing, we have reviewed the record in case No. B173697, Lockheart’s direct appeal. In
that case we affirmed Lockheart’s convictions for two counts of second degree robbery
and two counts of assault with a semiautomatic weapon, and the imposition of the
accompanying firearm-use and prior prison term enhancements. (People v. Lockheart
(Sept. 12, 2005, B173697) [nonpub. opn.].)

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subdivision (a), possession of a controlled substance, which is now a misdemeanor under
Proposition 47, the Safe Neighborhoods and Schools Act (§ 1170.18).
       On October 13, 2015 Lockheart made a motion for resentencing based on the
August 12, 2015 order. According to Lockheart, when the court sentenced him in
January 2004, the court considered his two prior felony convictions as aggravating
factors justifying the imposition of the upper term on count 3, assault with a
semiautomatic firearm. Lockheart argued that because one of those felonies, possession
of a controlled substance, was now a misdemeanor, the court should vacate his sentence
of 24 years four months and resentence him on count 3 to the middle term of six years.
Lockheart also attached to his motion exhibits reflecting his participation in leadership,
educational, and rehabilitative programs.
       On October 28, 2015 the trial court deemed Lockheart’s motion a petition for
recall of his current felony sentence and a request for resentencing under Proposition 47.
The court found Lockheart was ineligible for resentencing under Proposition 47, and
denied the petition. The court acknowledged the positive steps Lockheart had made
toward rehabilitation, but found no legal or factual basis to grant the relief he requested.
Lockheart filed a timely notice of appeal from the order denying his petition for
Proposition 47 relief.

                                       DISCUSSION


       We appointed counsel to represent Lockheart on appeal. After examining the
record, counsel filed an opening brief raising no issues. On April 1, 2016 we advised
Lockheart he had 30 days to submit any arguments or raise any issues he wanted us to
consider. We have not received a response.
       We have examined the record and are satisfied appellate counsel for Lockheart has
fully complied with his responsibilities and that there are no arguable issues. (See Smith
v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v.
Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.) The
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trial court correctly ruled that assault with a semiautomatic firearm and robbery are not
among the offenses for which a defendant may seek reclassification or resentencing
pursuant to section 1170.18, subdivision (a).


                                      DISPOSITION


       The order is affirmed.




              SEGAL, J.


We concur:




              PERLUSS, P. J.




              GARNETT, J.*




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

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