Filed 12/11/13 P. v. Blackburn CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058951

v.                                                                       (Super.Ct.No. FSB08063)

KEVIN EUGENE BLACKBURN,                                                  OPINION

         Defendant and Appellant.




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

Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

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

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Kevin Eugene Blackburn appeals after the trial court

denied his petition(s) to recall his sentence and for resentencing, pursuant to the Three

Strikes Reform Act of 2012 (Proposition 36). We affirm.

                         FACTS AND PROCEDURAL HISTORY

       In 1996, defendant was charged by an amended information with one count of

petty theft, with a prior theft-related conviction (Pen. Code, § 666). The amended

information also alleged that defendant had suffered three prior strike convictions (first

degree residential robbery in 1989, assault with intent to commit rape in 1989, and first

degree burglary in 1992), as well as two prior prison term enhancements. The jury found

defendant guilty as charged, and found true all the prior conviction allegations (strikes

and prison terms).

       In May 1996, the trial court sentenced defendant as a third striker under the law as

in effect at the time, to a term of 25 years to life for the current offense, plus two one-year

enhancements for the prior prison terms, for a total of 27 years to life.

       In November 2012, after passage of Proposition 36, defendant filed a petition

under Penal Code section 1170.126 for recall of the sentence and for resentencing. He

argued that his third strike offense (petty theft with a prior) was not a serious or violent

felony, so that he should be eligible for resentencing under the reformed provisions of the

“Three Strikes” law. The court denied defendant’s petition, however, because one of his

prior strike offenses was for assault with intent to commit rape, in violation of Penal

Code section 220.



                                              2
       In March 2013, defendant filed a petition for writ of habeas corpus after the denial

of his petition to recall the sentence. Defendant argued that his prior conviction for

assault with intent to commit rape did not meet the definition of a disqualifying prior

“sexually violent offense,” pursuant to Penal Code section 667, subdivision

(e)(2)(C)(iv)(I) and Welfare and Institutions Code section 6600, subdivision (b), because

he did not suffer from a mental disorder, under Welfare and Institutions Code section

6600, subdivisions (a) and (c). The trial court treated the habeas corpus petition as a

renewal of the petition to recall his sentence. The court denied the petition a second time.

       Defendant filed a notice of appeal, specifying that the issue on appeal was the

denial of resentencing under Proposition 36.

                                        ANALYSIS

       This court appointed counsel to represent defendant on appeal. Appellate counsel

has now filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v.

California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a brief

statement of the case, but making no substantive arguments. Counsel has identified two

interrelated issues that might be potential arguable issues: Was defendant previously

convicted of the offense of assault with intent to commit rape, in violation of Penal Code

section 220, and did such prior conviction constitute a disqualification from eligibility for

resentencing under Proposition 36? Counsel has also requested this court to undertake a

review of the entire record.




                                               3
       Defendant has been offered an opportunity to file a personal supplemental brief,

but he has not done so. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the entire record, and we find no arguable issues.

       Defendant maintained in his petition(s) below, that he should be eligible for recall

of sentence and for resentencing under Penal Code section 1170.126. The trial court

ruled that he was ineligible for resentencing. If the current offense is a serious or violent

felony, an inmate already serving a three strikes sentence is not eligible for resentencing.

Here, defendant’s current offense was not a serious or violent felony. However,

Proposition 36 also provides that a third striker may be ineligible for resentencing if one

of the prior strikes was for a disqualifying felony. The trial court found that defendant’s

prior conviction for violation of Penal Code section 220 was a disqualifying felony;

defendant disputed that finding.

       Penal Code section 1170.126, implementing Proposition 36, provides in relevant

part: “(e) An inmate is eligible for resentencing if: [¶] . . . [¶] (2) The inmate’s current

sentence was not imposed for any of the offenses appearing in clauses (i) to (iii),

inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or

clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of

Section 1170.12. . . .”

       Penal Code section 667, subdivision (e)(2)(C)(iv)(I) provides: “(e) For purposes

of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or

punishment provisions which may apply, the following shall apply where a defendant has



                                              4
one or more prior serious and/or violent felony convictions: [¶] . . . [¶] [(2)] (C) If a

defendant has two or more prior serious and/or violent felony convictions as defined in

subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled

and proved, and the current offense is not a serious or violent felony as defined in

subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision

(e) unless the prosecution pleads and proves any of the following: [¶] . . . [¶] (iv) The

defendant suffered a prior serious and/or violent felony conviction, as defined in

subdivision (d) of this section, for any of the following felonies: [¶] (I) A ‘sexually

violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and

Institutions Code. . . .”

       Welfare and Institutions Code section 6600, subdivision (b), in turn, provides:

“(b) ‘Sexually violent offense’ means the following acts when committed by force,

violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or

another person, or threatening to retaliate in the future against the victim or any other

person, and that are committed on, before, or after the effective date of this article and

result in a conviction or a finding of not guilty by reason of insanity, as defined in

subdivision (a): a felony violation of Section 261, 262, 264.1, 269, 286, 288, 288a,

288.5, or 289 of the Penal Code, or any felony violation of Section 207, 209, or 220 of

the Penal Code, committed with the intent to commit a violation of Section 261, 262,

264.1, 286, 288, 288a, or 289 of the Penal Code.”




                                              5
       Defendant was convicted of a violation of Penal Code section 220, with intent to

commit rape (i.e., “with the intent to commit a violation of Section 261 . . . .” Welf. &

Inst. Code, § 6600, subd. (b).). He therefore committed a “sexually violent offense” as

defined in Welfare and Institutions Code section 6600, subdivision (b). Defendant’s sole

argument that this conviction did not constitute a “sexually violent offense” depends

upon his contention that the remaining provisions of Welfare and Institutions Code

section 6600 must also be applied, i.e., that a “sexually violent offense” as defined in

Welfare and Institutions Code section 6600, subdivision (b), can only apply to a mentally

disordered sex offender, as defined in Welfare and Institutions Code section 6600,

subdivisions (a) and (c).

       Penal Code section 667, subdivision (e)(2)(C)(iv)(I) does not, however, refer to a

sex offender with a diagnosed mental disorder. Rather, it refers exclusively to a

“‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare

and Institutions Code.” (Italics added.) It makes no reference to Welfare and Institutions

Code section 6600, subdivision (a) or subdivision (c). There is no requirement in

Welfare and Institutions Code section 6600, subdivision (b), that a “sexually violent

offense” qualifies as such only if committed by a person with a diagnosed mental disorder

leading to sexually violent behavior.

       The trial court properly deemed defendant’s prior conviction of Penal Code

section 220 as a disqualifying prior strike offense.




                                              6
                                      DISPOSITION

       The trial court properly denied defendant’s petition(s) for recall of sentence and

for resentencing under Proposition 36. The rulings are affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               McKINSTER
                                                                                            J.
We concur:



HOLLENHORST
          Acting P. J.



KING
                          J.




                                             7
