Filed 7/31/13 P. v. Trejo CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                          G048041

         v.                                                             (Super. Ct. No. 97CF1658)

OCTAVIO RUIZ TREJO,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Craig E.
Robison, Judge. Affirmed.
                   Richard Power, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
                                                      *      *      *
              Appellant Octavio Ruiz Trejo was convicted of terrorist threats (Pen. Code,
§ 422)1 and two counts of battery upon a police officer (§ 243) in 1998. Having
previously been convicted of first degree burglary (§§ 459-460) and assault with a deadly
weapon (§ 245) he was sentenced to a term of imprisonment of 25 years to life in prison
under the “Three Strikes” law, and his conviction was affirmed by this court.
              On November 6, 2012, the voters of this state reconsidered the Three
Strikes law. They enacted Proposition 36, which ameliorated the punishment provided
by the Three Strikes law in some instances. In those instances, it enabled a prisoner
serving an indeterminate sentence with two prior strike convictions to petition for
resentencing if his or her current conviction was not for a serious felony conviction.
Proposition 36 was enacted into law as section 1170.126.
              Trejo petitioned for relief under this provision, using a form provided him.
While the form recites that appellant’s most recent conviction was not for an offense
listed in either sections 667.5, subdivision (c) or 1192.7, subdivision (c), he was in fact
serving a sentence for a violation of section 422, which is listed in section 1192.7. For
this reason, his petition was denied when it was heard in the court below.
              Trejo appealed, and we appointed counsel to represent him. Counsel did
not argue against his client, but advised this court he could find no issues to argue on
appellant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Counsel filed a brief which
set forth the facts of the case and a full recitation of the law and history of the only
conceivable appellate issue in the case: the applicability of section 1170.126 to appellant.
He did not tell us why his client did not qualify for relief under the statute; that would
have been arguing against his client. But it was pretty obvious to us.
              Trejo was given 30 days to file written argument in his own behalf, but no
brief was filed. There is little Trejo could have said. The only appeal available to him
was for denial of his petition, and his petition was fatally flawed.




       1      All further statutory references are to the Penal Code.


                                                      2
              As we have noted above, Trejo’s petition was for relief under a section that
explicitly disqualifies him from relief. The section provides for possible sentence
reconsideration for inmates not convicted of an offense listed in section 1192.7. Trejo
was convicted for an offense that is listed: section 422. This is why his attorney was
unable to make an argument in his behalf, and it is why we are unable to do anything but
affirm the judgment.
              The judgment is affirmed.




                                                 BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



ARONSON, J.




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