Filed 1/14/14 P. v. Rice 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059105

v.                                                                       (Super.Ct.No. RIF114635)

ARCHIE BRAMLETT RICE, JR.,                                               OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Anita P. Jog, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       Defendant Archie Bramlett Rice, Jr., appeals following the denial of his petition

for recall of his sentence pursuant to Penal Code section 1170.126, subdivision (f).1 We

will affirm the order.

                                      BACKGROUND2

       Defendant was convicted of one count of being an ex-felon in possession of a

firearm (former § 12021, subd. (a)(1)) and one count of possession of ammunition by a

person prohibited from owning or possessing a firearm (former § 12316, subd. (b)(1)).3

Two strike prior allegations were found true, and on January 7, 2005, defendant was

sentenced to concurrent terms of 25 years to life in state prison pursuant to the three

strikes law as then in effect.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act. Among other things, this ballot measure enacted section

1170.126, which permits persons currently serving an indeterminate life term under the

three strikes law to file a petition in the sentencing court, seeking to be resentenced to a

determinate term as a second-striker. (§ 1170.126, subd. (f).) If the trial court



       1   All statutory citations refer to the Penal Code.

       2 The record does not include any information concerning the underlying facts of
defendant’s current offenses. However, those facts are not material to the issue we
consider in this appeal.

       3 Sections 12021 and 12316 were repealed on January 1, 2010 and reenacted
without substantive change as sections 29800 and 30305, respectively, operative January
1, 2012. (See Cal. Law Revision Com. com., 51D pt. 4 West’s Ann. Pen. Code
(2012 ed.) foll. § 29800, p. 194 & § 30305, p. 284.)

                                               2
determines, in its discretion, that the defendant meets the criteria of section 1170.126,

subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

       On May 20, 2013, defendant filed a petition for modification of his sentence

pursuant to Proposition 36.

       On May 22, 2013, the court denied the petition, finding that defendant was

ineligible for relief because of his prior convictions for attempted murder (§§ 664, 187)

and forcible rape (§ 261, subd. (2)).

       Defendant filed a timely notice of appeal.

                                        DISCUSSION

       We appointed counsel to represent defendant on appeal. After examination of the

record, counsel filed an opening brief raising no issues and asking this court to

independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We have

independently examined the record. We are satisfied that defendant’s attorney has fully

complied with her responsibilities and that no arguable issues exist. (People v. Kelly

(2006) 40 Cal.4th 106, 109-110; People v. Wende, at p. 441.)

       We offered defendant the opportunity to file any supplemental brief he deemed

necessary, and on December 3, 2013, defendant filed a supplemental brief. In his

supplemental brief, defendant argues that because his current conviction is for crimes

which are not serious or violent felonies within the meaning of the three strikes law, this

court should dismiss his strike priors in order to effectuate the intent of the electorate in

enacting Proposition 36, i.e., to “[r]estore the three strikes law to the public’s original

understanding by requiring life sentences only when a defendant’s current conviction is

                                               3
for a violent or serious crime.” However, even though defendant’s current offenses are

not themselves serious or violent felonies, his prior convictions preclude relief under

Proposition 36.

       Section 1170.126, subdivision (e)(1), provides, as pertinent here, that a defendant

is eligible for resentencing if he or she is “serving an indeterminate term of life

imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or

subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not

defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or

subdivision (c) of Section 1192.7,” unless the defendant has a prior conviction for certain

enumerated felonies as stated in section 1170.12, subdivision (c)(2)(C). Among the

felonies which render a defendant ineligible for relief are attempted murder and forcible

rape. (§ 1170.12, subd. (c)(2)(C)(iv)(I) [rape], subd. (c)(2)(C)(iv)(IV) [homicide or

attempted homicide].)4 Defendant was charged with six prior serious felony convictions,

including attempted murder and forcible rape. The trial court in that case found the strike

allegations true. Accordingly, as the trial court which ruled on defendant’s

Proposition 36 petition found, defendant is not eligible for resentencing pursuant to

section 1170.126, subdivision (f).




       4Forcible rape, in violation of section 261, is a sexually violent offense as defined
by Welfare and Institutions Code section 6600, subdivision (b). (See Pen. Code,
§ 1170.12, subd. (c)(2)(C)(iv)(I).)

                                              4
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                               McKINSTER
                                                           Acting P. J.

We concur:



RICHLI
                       J.



MILLER
                       J.




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