Filed 6/5/14 P. v. Aguilera CA4/2

                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                        FOURTH APPELLATE DISTRICT

                                                      DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E059932

v.                                                                        (Super.Ct.No. FVA03693)

GUSTAVO AGUILERA,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. Affirmed.

         Neil Auwarter, under appointment by the Court of Appeal, for Defendant and

Respondent.

         No appearance for Plaintiff and Respondent.

         Gustavo Aguilera filed a petition for resentencing pursuant to Penal Code section




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1170.126.1 The court denied the petition. After defendant’s counsel filed the notice of

appeal, this court appointed counsel to represent defendant on appeal.2 Counsel has filed

a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v.

California (1967) 386 U.S. 738, setting forth a statement of the case and identifying four

potentially arguable issues: 1) whether the denial of defendant’s petition is appealable;3

2) whether appellant’s 1985 forcible rape conviction disqualifies him from resentencing;

3) whether there was sufficient evidence in the record that the prior felony strikes were

found true in the instant case; and 4) whether the appeal from the underlying judgment

resulted in any modification affecting defendant’s eligibility for resentencing.

       We offered defendant the opportunity to file a personal supplemental brief, which

he has done. In his brief, defendant requests that we review the plea bargain in which



       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2 We note the appealability of the denial of a section 1170.126 petition is
currently being considered by the Supreme Court. (Teal v. Superior Court (2013) 217
Cal.App.4th 308, review granted July 31, 2013, S211708 [not appealable]; People v.
Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017
[appealable].) Even if we were to conclude it was a nonappealable order, we could
consider, in the interest of judicial economy and because of uncertainty in the law, that
defendant’s appeal is a petition for writ of habeas corpus or writ of mandate. (Braziel v.
Superior Court (2014) 225 Cal.App.4th 933 [treating appeal from denial of petition for
resentencing as a petition for writ of mandate]; see People v. Segura (2008) 44 Cal.4th
921, 928, fn. 4 [treating appeal from nonappealable order as petition for writ of habeas
corpus].) In any event, we will review the merits of defendant’s appeal.

       3   This issue is addressed in footnote 2 ante.



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defendant admitted his prior strike convictions, contending he pled to only one count, and

that he was not informed at the time that it would be a strike.4 We affirm the judgment.

                      FACTUAL AND PROCEDURAL HISTORY5

       “A police officer stopped defendant for driving a car with expired registration

tags. The officer arrested defendant when he was unable to find a record of a driver’s

license under the name that defendant had given. While searching defendant pursuant to

the arrest, the officer found .24 grams of methamphetamine in defendant’s pocket.”

       “A jury convicted defendant of one count of possession of methamphetamine.

(Health & Saf. Code, § 11377, subd. (a).) The court found true allegations defendant had

suffered two prior serious felony [“strike”] convictions under [former] section 667,

subdivisions (b) through (i) . . . .” The strike allegations found true by the court involved

defendant’s prior convictions for forcible rape and robbery. In finding the allegations

       4  Defendant neither attached any records of his prior convictions in 1985, the
subject of his prior strike conviction allegations, to his petition for resentencing nor has
he produced any on appeal. The record in defendant’s prior appeal of his judgment in the
instant case does not contain any documents pertaining to his prior convictions. It does
not appear defendant appealed the prior convictions. In any event, the records of any
such appeal would have been destroyed by now. (Cal. Rules of Court, rule 10.128(d)(2)
[Appellate records from criminal convictions destroyed after 20 years.])

       5 By order dated May 19, 2014, we took judicial notice of the following
documents from our record in case No. E018001, the record from defendant’s appeal
from the original judgment in this case: Our opinion dated April 17, 1997; the minute
order dated January 18, 1996, of defendant’s bench trial on the prior conviction
allegations; and pages 171 through 174 of the reporter’s transcript from defendant’s
bench trial on the prior conviction allegations. Our recitation of the factual and
procedural history is taken from these sources.



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true, the court noted that it had not only considered the certified copy of the abstract of

judgment of defendant’s convictions, the prison packet, and defendant’s plea form,6 but

had taken “into account the evidence taken at the trial before the jury wherein []

defendant admitted on direct examination that he had suffered these convictions.”

        The trial court denied defendant’s pretrial motion to strike the prior strike

convictions finding “‘they are recent, they are violent, and they are serious. [C]ounsel

have also indicated to the Court that there is a separate ex-felon with a gun conviction

that is not currently alleged, but [] [d]efendant has, in fact, suffered that conviction.’”

The court denied defendant’s postconviction motion to strike the prior strike convictions

finding defendant had “an intervening conviction” for possession of a gun by a felon.

The court sentenced defendant to an indeterminate term of incarceration of 25 years to

life.

        Defendant appealed his conviction contending the trial court abused its discretion

by denying his motions to strike his prior strike convictions and that his sentence violated

federal and state prohibitions against cruel and/or unusual punishment. We affirmed the

judgment without modification.

                                        DISCUSSION

        Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues. (§§ 1170.126, subd. (e)(3); 667, subd.

        6   These documents are not contained in the record for case No. E018001.



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(e)(2)(C)(iv)(I); Welf. & Inst. Code, § 6600, subd. (b) [defendant ineligible for section

1170.126 resentencing where he has sustained a prior conviction for forcible rape]; In re

Yurko (1974) 10 Cal.3d 857, 863 [A defendant’s admission of the truth of a prior

conviction is sufficient evidence to support the prior conviction allegation.]; People v.

Crosby (1992) 3 Cal.App.4th 1352, 1355-1356 [Trial court has no duty to advise a

defendant that a plea may subject a defendant to enhanced punishment in the event he

commits a subsequent offense as such an enhancement is an indirect, collateral

consequence of the plea.].)

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                            J.

We concur:


McKINSTER
                Acting P. J.


KING
                           J.




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