Filed 1/13/16 P. v. Acosta CA4/3




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051928

         v.                                                            (Super. Ct. No. 94SF0516)

RAMON RODRIGUEZ ACOSTA                                                 OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Kazuharu
Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
                   Rodger Paul Curnow, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.
                                             *               *               *
               In 1994, Appellant Ramon Rodriguez Acosta was convicted by a jury of
first degree burglary (inhabited dwelling house). The jury found it true that Acosta was
on bail at the time he committed the crime. After a separate proceeding, the trial court
found to be true the allegations that Acosta had suffered two prior serious felonies and 16
felonies in total. It sentenced Acosta to state prison for 25 years to life under the Three
Strikes law plus 10 years for the two serious felonies. Acosta moved to have one of the
strikes stricken and was denied. He appealed, and his conviction was upheld.
       Seventeen years later he petitioned for relief under Proposition 36. He was
refused because his crimes did not qualify for consideration under the new law.
       In January of 2015, he petitioned the trial court under Proposition 47 for
resentencing. His petition was denied on the same basis.
               We appointed counsel to represent him on that appeal. Counsel filed a brief
which set forth the procedural facts of the case (the facts of the crimes themselves are
largely irrelevant because the argument is solely directed at Acosta’s plea and the
application to it of Pen. Code, § 1170.18). Counsel did not argue against his client, but
advised us there were no issues to argue on his behalf.
               Acosta was invited to express his own objections to the proceedings against
him, and filed with us a brief that raises two issues: the constitutionality of California’s
definition of “serious crimes” for Three Strikes law treatment, and the equity of applying
that law to him after 21 years of acceptable prison behavior.
               The first issue is based upon an erroneous premise. Acosta argues that
enhancement of his sentence under the Three Strikes law sentencing scheme is
unconstitutional under In re Winship (1970) 397 U. S. 358, because it amounts to the
application of a presumption that is not reasonably related to fact. His argument is that
not all burglaries are violent or result in violence, so treating burglary as a violent felony
for purposes of Penal Code section 1192.7, subdivision (c) amounts to an unconstitutional
presumption.

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               The immediate problem with this argument is that the statutory scheme
does not treat burglary as a “violent” crime, but rather as a “serious” one. Acosta was not
sentenced to 25 years to life because burglary is a violent crime but because the
Legislature has defined it as a serious crime meriting serious treatment. While Acosta’s
argument might fail even if we analyzed it as a presumption having to do with the
likelihood of violence in burglaries, it clearly fails when analyzed as an objection to the
legislative determination that burglary is a serious crime. Deciding what crimes are
serious is unquestionably a legislative function and does not involve reliance on any
presumption.
               As for Acosta’s argument that “mitigating circumstances take him outside
the spirit of the Three Strikes law,” we cannot agree. Acosta suffered 16 felony
convictions before the present offense. This was the third of those that was serious or
violent. He is precisely the person the Legislature had in mind for treatment under the
Three Strikes law.
               He has apparently lived an exemplary life in prison. He has attached
favorable “chronos” and his attorney tells us he is suffering from hypertension and
diabetes and would therefore not be a threat if released from prison. But that is not the
issue we get to address. All we can decide is whether the court acted reasonably in
sentencing him under the Three Strikes law. It did. His oft-demonstrated inability to
function well outside the prison environment left the trial court no choice but to sentence
him as it did, and there is no basis in law or logic for reversal of that choice.
               Under the law, we are required to review the record and see if we can find
any issues that might result in a finding of error when an attorney tells us he/she is unable
to. (People v. Wende (1979) 25 Cal.3d 436.) We have done so. We have looked not just
at the issues Acosta raised but for whatever other issues might exist. It should be
emphasized that our search was not for issues upon which Acosta would prevail, but only
issues upon which he might possibly prevail.

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             We have found no arguable issue. Appellate counsel was correct in
concluding there was no arguable issue on appeal.
             The order is affirmed.




                                               BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



ARONSON, J.




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