Filed 10/15/15 P. v. Metters CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144229
v.
JAMES R. METTERS, JR.,                                               (Alameda County
                                                                     Super. Ct. No. C121038)
         Defendant and Appellant.


         In July 1996, following conviction of the “Three Strikes” law third offense of
second degree robbery, James R. Metters, Jr. was sentenced to a term of 35 years to life.
This court affirmed.1 In November 2014, following adoption of Penal Code section
1170.126 by the voters as Proposition 36, Metters sent a “Petition for Recall of Sentence”
prepared by him. Metters stated as the grounds for the petition that he “is optimistic


1
   Metters has submitted a “Motion . . . For Judicial Notice of People v. Metters (1998)
61 Cal.App. 4th 1489.” That was the opinion in which we affirmed the judgment of
conviction. However, the Supreme Court granted review, which meant that the opinion
originally published at 61 Cal.App.4th 1489 was “no longer considered published.” (Cal.
Rules of Court, rule 8.1105(e)(1).) The Supreme Court thereafter transferred the cause
back to this court for reconsideration in light of People v. Cleveland (2001) 25 Cal.4th
466 (People v. Metters (Oct. 17, 2001, S069442 [order].) Pursuant to that directive, we
filed an opinion that was not certified for publication. (People v. Metters (Sept. 23, 2002,
A074986) [nonpub. opn.].) Treating the pending motion as a request to take judicial
notice of our first opinion, filed on March 10, 1998, we grant the request because the
opinion may be “relevant to a criminal . . . action because it states reasons for a decision
affecting the same defendant . . . in another such action.” (Cal. Rules of Court, rule
8.1115(b)(2).)

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about a recall of sentence and hereby requests a re-sentencing hearing . . . to reduce the
defendant’s punishment by striking a strike pursuant to Penal Code § 1385, and ‘in the
interests of justice.’ ”
       Metters elaborated: “The nature and circumstances of the Petitioner’s case are
extremely different than a normal case involving the crime of robbery. There are
mitigating circumstances that lead up to, encouraged, and enticed the Petitioner to
indulge in the crime of robbery. Several hours before the Petitioner committed the
robbery against one Mrs. Joyce Wilson, a cashier at a Wendy’s restaurant located . . . in
Oakland, . . . the Petitioner was abducted and held against his will by several drug dealers
[to whom he owed money]. . . . With no other viable means to procure the remaining
$200.00, in fear of his life and his family’s well being, the Petitioner called a taxi and set
off to commit the crime of robbery.”2
       The petition was summarily denied, but the court (Hon. Larry J. Goodman) wrote
a four-page order explaining the denial. First, Judge Goodman concluded that Metters
was categorically ineligible for relief: “Subdivision (b) of section 1170.126 states in
relevant part, ‘[a]ny person serving an indeterminate term of life imprisonment imposed
. . . upon conviction, whether by trial or plea, 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, may file a petition for a recall of sentence, . . . , to request resentencing
. . . .’ [T]he crime of robbery (section 211) is defined as both a violent and as a [serious]
felony. (See sections 667.5, subd. (c) (9), and 1192.7, subd. (c)(19).) Thus, by the
express terms of the statute [i.e., section 1170.126] Petitioner is not eligible to have his
sentence recalled and be resentenced . . . .”
       Next, for the same reason, Judge Goodman concluded “Petitioner’s argument that
he falls within the spirit of the law and the voters’ intent is also without merit.”
       The third and final reason for the denial was the rejection of Metters’s request “to
strike one of his priors in the interest of justice pursuant to section 1385 and People v.

2
   This was in effect a renewal of the defense of duress that was rejected at Metters’s
trial, a rejection we held was proper. (See People v. Metters, supra, A074986.)

                                                2
Romero (1996) 13 Cal.4th 497” because “the trial court denied Petitioner’s Romero
motion . . . before pronouncing judgment,” and Metters “does not cite authority” that
such a motion could be renewed “18 years after the imposition of sentence.”
         Metters filed a timely notice of appeal from the order, which is appealable. (Teal
v. Superior Court (2014) 60 Cal.4th 595, 597.) Appointed counsel has asked this court to
conduct an independent review of the record in accordance with People v. Wende (1979)
25 Cal.3d 436 to determine whether there are any arguable issues that require briefing.
Metters was advised of his right to file a supplemental brief of his own, and he elected to
do so.
         Penal Code section 667.5, subdivision (c) states that “ ‘violent felony’ shall mean
any of the following: [¶] . . . (9) Any robbery.” Penal Code section 1192.7, subdivision
(c) states that “ ‘serious felony’ means any of the following: [¶] . . . (19) robbery . . . .”
The first of Judge Goodman’s grounds for denying the petition was sound. With
Metters’s disentitlement so clearly shown from the face of his petition, summary denial
was entirely proper. (See People v. Duvall (1995) 9 Cal.4th 464, 475 [“If no prima facie
case for relief is stated, the court will summarily deny the petition.”].) The same would
be true with respect to Metters’s attempt to reopen the duress issue long after it had been
closed by this court. As for Penal Code section 1385, which allows dismissal or striking
of a prior felony conviction “prior to pronouncing sentence” (People v. Benjamin (1957)
154 Cal.App.2d 164, 173), we have been unable to find any reported decision permitting
renewal of a rejected Romero motion so many years following affirmance on direct
appeal. Defendant’s supplemental brief furnishes no basis for overturning any of these
conclusions.
         The order is affirmed.




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                                     _________________________
                                     Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




A144229; The People v. Metters




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