Filed 4/9/13 P. v. Howe CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064332
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 10CM8754)
                   v.

STEVEN HOWE,                                                                             OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Steven D.
Barnes, Judge.

         Ronald R. Boyer, 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 Levy, Acting P.J., Kane, J., and Poochigian, J.
                             STATEMENT OF THE CASE
       Appellant, Steven Howe, was charged on June 9, 2011, in an information with one
count of possession of marijuana while being an inmate in state prison (Pen. Code, §
4573.6).1 The information also alleged 28 serious or violent felonies pursuant to the
three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The information also
alleged three prior prison term enhancements (§ 667.5, subd. (b)).
       On November 21, 2011, appellant entered into a plea agreement wherein he would
admit the substantive count and 15 prior serious felony convictions in exchange for
dismissal of the remaining allegations. The parties agreed that the factual basis for
appellant’s plea was that on January 31, 2010, appellant possessed marijuana in Avenal
State prison without permission. Appellant was informed of the consequences of his
plea, including the fact that he was facing a sentence of 25 years to life. Appellant was
also advised that he could request that the court strike some of his prior serious felony
convictions. The court informed appellant of his constitutional rights pursuant to
Boykin/Tahl2 and appellant waived them. Appellant pled guilty to possession of
marijuana in state prison and admitted 15 prior serious felony convictions.
       On January 20, 2012, the trial court declined to exercise its discretion to strike any
of appellant’s prior serious felony allegations and sentenced him to prison for a term of
25 years to life to be served consecutively to the sentence appellant was serving when he
committed this offense. The court imposed a $200 restitution fine. Appellant did not




1      All statutory references are to the Penal Code.
2     Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122
(Boykin/Tahl).


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obtain a certificate of probable cause. Appellate counsel has filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende).3
                           APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he could file his
own brief with this court. By letter on June 6, 2012, we invited appellant 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       In People v. Yearwood (2013) 213 Cal.App.4th 161, 167-181, we recently ruled,
inter alia, that Proposition 36, approved by the voters on November 6, 2012, applies
prospectively and does operate retroactively. On January 31, 2013, this court denied
appellate counsel’s motion to file a supplemental brief addressing retroactive application
of Proposition 36. Our opinion in the instant appeal is issued without prejudice to
appellant pursuing his right to file a motion in the trial court pursuant to the
postconviction procedures set forth in section 1170.126. (Yearwood, supra, at pp. 175-
176.)


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