Filed 3/24/16 P. v. James CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069142

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD105774)

ROBERT A. JAMES,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David J.

Danielson, Judge. Affirmed.



         Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.
                                        OVERVIEW

       In 1995, a jury found defendant and appellant Robert A. James guilty of assault

with a deadly weapon (Pen. Code,1 §§ 245, subd. (a) & 1192.7, subd. (c)(23); count 1);

commercial burglary (§ 459; count 2); two counts of petty theft with priors (§§ 484, 666;

counts 3 & 4); and misdemeanor simple battery (§ 242; count 5). The court found true

two serious felony prior convictions (§ 667, subd. (a)(1)); two prison priors (§ 667.5,

subd. (b)); and two serious/violent felony priors (§ 667, subds. (b)-(i)).

       The court originally sentenced defendant to three consecutive terms of 25 years to

life on counts 1, 3 and 4. (§ 667, subd. (e)(2).) The court imposed 180 days on the

misdemeanor battery, time having been considered served, and struck the prison priors

and serious felony priors, for a total sentence of 75 years to life.

       This court affirmed the judgment. (People v. James (Nov. 22, 1996, D023261)

[nonpub. opn.].) In so doing, this court ordered defendant's sentence modified to add five

years for each of the two serious felony priors. (§ 667, subd. (a)(1).) As such, defendant

was resentenced to 85 years to life. The modified judgment was affirmed on further

appeal by, and petitions to, this court. (People v. James (Nov. 17, 2000, D034933)

[nonpub. opn.]; In re James (Nov. 17, 2000, D036103) [petn. den.]; and In re James

(June 10, 2011, D059774) [petn. den.].)

       In August 2015, defendant, pursuant to sections 1170.18 and 1170.126, petitioned

the court to recall his sentence on counts 2, 3 and 4 stemming from his 1995 convictions.



1      All further statutory references are to the Penal Code.
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We note the record specifically shows his petition excluded his conviction on count 1 for

assault with a deadly weapon (§§ 245, subd. (a) & 1192.7, subd. (c)(23)).

       The record shows the court granted defendant's petition to reduce the three theft-

related felony convictions on counts 2, 3 and 4 to misdemeanors under section 1170.18.

As a result, the court resentenced defendant to an aggregate term of 35 years to life, after

the court reinstated his sentence of 25 years to life on count 1 and imposed five-year

terms for each of his serious felony priors.

       Defendant timely appealed from the order granting his motion. Pursuant to

People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel filed a brief on behalf

of defendant setting forth the key facts of the case and requesting we review the entire

record. In addition, pursuant to Anders v. California (1967) 386 U.S. 738, appointed

counsel set forth the following possible, but not arguable, issues to assist us in conducting

our Wende review, including whether the court erred in "ruling" defendant was ineligible

for resentencing on count 1 pursuant to section 1170.126.

       On our own motion, we gave defendant 30 days to file a brief on his behalf with

this court. Defendant in fact filed a supplemental brief, which we have read and

considered in connection with his appeal. Affirmed.

                                       DISCUSSION

       On November 6, 2012, California voters approved the Three Strikes Reform Act

of 2012 (the Act), which amended the three strikes law effective November 7, 2012.

(People v. Yearwood (2013) 213 Cal.App.4th 161, 167.) Before passage of the Act, a

defendant convicted of two prior serious or violent felonies was subject to a 25-years-to-

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life sentence upon his or her conviction of any additional felony. (People v. Johnson

(2015) 61 Cal.4th 674, 680; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th

1279, 1285.) However, the "Act diluted the three strikes law by reserving the life

sentence for cases where the current crime is a serious or violent felony or the

prosecution has pled and proved an enumerated disqualifying factor. In all other cases,

the recidivist will be sentenced as a second strike offender." (People v. Yearwood, supra,

at pp. 167-168; see § 1170.126, subd. (e)(1) [noting "[a]n inmate is eligible for

resentencing if: [¶] [t]he inmate is serving an indeterminate term of life imprisonment

. . . 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" (italics

added)].)

       Here, as noted ante, defendant in his petition did not request a recall of sentence

with respect to count 1. And for good reason. Pursuant to subdivision (c)(23) of section

1192.7, a "serious felony" includes "any felony in which the defendant personally used a

dangerous or deadly w0eapon." Because defendant was convicted in 1995 of assault with

a deadly weapon pursuant to section 245, subdivision (a)(1), which included an allegation

under section 1192.7, subdivision (c)(23), we independently conclude defendant was

ineligible under the Act for resentencing on count 1. (See § 1170.126, subd. (e)(1).)

       Finally, a review of the entire record pursuant to Wende, supra, 25 Cal.3d 436 has

disclosed no other reasonably arguable appellate issues in connection with defendant's

motion.



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                                   DISPOSITION

     The court's order denying defendant's motion is affirmed.




                                                                 BENKE, Acting P. J.

WE CONCUR:


HALLER, J.


McDONALD, J.




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