Filed 1/22/16 P. v. Maes CA5




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        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F070648
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. SC071836A)
                   v.

RUDY PRESTON MAES,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment 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 Kane,      Acting P.J., Poochigian, J. and Peña, J.
                      PROCEDURAL AND FACTUAL SUMMARY
       Defendant Rudy Preston Maes appeals from the trial court’s denial of his motion
to recall his sentence pursuant to Penal Code section 1170.126 (Proposition 36).1
According to his petition, defendant is currently serving a sentence of 25 years to life for
convictions in 1997 while incarcerated in prison: obstructing an executive officer (§ 69)
and battery by a prisoner (§ 4501.5). Defendant had prior convictions for assault to
commit rape (§ 220) in 1983 and assault causing great bodily injury (§ 245, subd. (a)(1),
former § 12022.7) in 1996.
       The People objected to defendant’s motion because he had a prior conviction for a
sexually violent offense. As the People set forth in their opposition brief, section
1170.126, subdivision (e)(3) states an inmate is eligible for resentencing if the inmate has
“no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C)
of paragraph (2) of subdivision (e) of section 667 or clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (c) of section 1170.12.” These two statutes define sexually
violent offenses in section 667, subdivision (e)(2)(C)(iv)(I) and section 1170.12,
subdivision (c)(2)(C)(iv)(I) as offenses “defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code.” Among the offenses defined as a sexually violent
offense in Welfare and Institutions Code section 6600, subdivision (b) is Penal Code
section 220.
       On December 10, 2014, the parties submitted the matter on their pleadings. The
court denied the petition, noting defendant was not eligible for resentencing under
Proposition 36. Defendant filed a timely notice of appeal.
       Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436.



       1Unless   otherwise designated, further statutory references are to the Penal Code.


                                                 2.
                            APPELLATE COURT REVIEW
       Defendant’s appointed appellate counsel has filed an opening brief summarizing
the pertinent facts, raising no issues, and requesting this court to review the record
independently. (People v. Wende, supra, 25 Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating defendant was advised he could
file his own brief with this court. By letter on March 11, 2015, we invited defendant to
submit additional briefing. To date, he has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                      DISPOSITION
       The judgment is affirmed.




                                               3.
