Filed 10/9/13 P. v. Divincenzo 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058542

v.                                                                       (Super.Ct.No. FVI05479)

DARRIN MATTHEW DIVINCENZO,                                               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.

         Anna M. Jauregui-Law, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Darrin Matthew Divincenzo appeals after the trial court

denied his petition for “Three Strikes” law resentencing under the reforms enacted by

Proposition 36. We affirm.

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                        FACTS AND PROCEDURAL HISTORY

       Defendant was charged by information in January 1997 with one count of first

degree residential burglary. After over three years of delays, defendant eventually

pleaded guilty in June 2000. In December 2000, the court sentenced defendant as a third

striker to a prison term of 25 years to life.1 In March 2013, after the passage of

Proposition 36, reforming the Three Strikes law, defendant in propria persona filed a

petition to recall the sentence and requesting resentencing. The trial court found that

defendant was not eligible under the criteria of Proposition 36 for resentencing, and

denied the petition.

       Defendant filed a notice of appeal after this ruling.




       1 The amended information alleged two strike priors: a conviction in January of
1990 for residential (first degree) burglary, and a conviction in December of 1990 for
another residential (first degree) burglary. The amended information also alleged three
prior conviction enhancements: the first two enhancements were five-year priors (Pen.
Code, § 667, subd. (a)(1)), based on the same convictions as the strike priors. The third
prior conviction enhancement allegation was a one-year prior (Pen. Code, § 667.5), based
on a 1994 conviction of felony vandalism, and not remaining free of prison for the
prescribed period of five years. At sentencing after defendant’s guilty plea on the current
underlying offense in 2000, the court denied defendant’s request to exercise its discretion
to dismiss one or more of his strike priors. (People v. Superior Court (Romero) (1996)
13 Cal.4th 497.) On the People’s motion, however, the trial court did strike the first two
prior conviction enhancement allegations, i.e., the five-year priors based on the same two
convictions as the strikes. The court imposed, but stayed, a one-year enhancement on the
third prior conviction enhancement allegation. Defendant’s prison commitment was
therefore an indeterminate term of 25 years to life, based on his three strikes sentence.


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                                        ANALYSIS

       Counsel was appointed to represent defendant on appeal. Counsel has filed a brief

under authority of 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 summary of the

proceedings and facts, but not arguing any specific issues. Accordingly, we must conduct

a review of the entire record to determine whether the record reveals any issues that

would, if resolved favorably to defendant, result in a reversal or modification of the

judgment or ruling being appealed. (Anders v. California, supra, 386 U.S. 738 [87 S.Ct.

1396, 18 L.Ed.2d 493]; People v. Wende, supra, 25 Cal.3d 436; People v. Feggans

(1967) 67 Cal.2d 444; see also People v. Johnson (1981) 123 Cal.App.3d 106.) Counsel

did identify one potential issue for review, i.e., whether the trial court erred in denying

defendant’s petition to recall his sentence and for resentencing under Proposition 36 (Pen.

Code, § 1170.126).

       Defendant has also been offered the opportunity to file a personal supplemental

brief, which he has done. Defendant’s personal supplemental brief raises several points:

defendant contends (1) the Three Strikes law is unconstitutional, and violates the double

jeopardy clause; (2) he was promised in writing at his guilty plea proceedings in respect

to his 1989 and 1991 convictions that the first degree burglary offenses were not strikes,

and could not be used as strikes in future proceedings; (3) his crimes were not violent

because he never used weapons to carry them out, so he should be considered a

nonviolent offender equally with other nonviolent offenders who are eligible for




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resentencing under the three strikes reform provisions of Proposition 36. He also makes

in essence a plea for mercy: his crimes were committed because of his use of illegal

drugs. Since his latest imprisonment, he has taken classes or attended programs to

overcome his drug problems. He claims he no longer craves drugs, and complains that he

was never previously offered drug diversion.

       Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have independently

reviewed the entire record. We have found no arguable issues.

       Defendant’s current conviction is for first degree residential burglary. The trial

court properly determined that the current conviction is for a serious felony, and that

defendant is not eligible for resentencing under Penal Code section 1170.126.

       Defendant appears to be laboring under a misapprehension as to the seriousness of

his crimes. Both his strikes, as well as his current conviction, are for first degree

residential burglary. Notwithstanding that defendant claims he was not armed when he

committed these crimes, the Three Strikes law includes residential burglary as a strike,

because the conduct, even if nonviolent, is still “so dangerous that its repeated occurrence

might in the minds of the voters call for enhanced punishment equivalent to that imposed

upon violent recidivists.” (People v. Jackson (1985) 37 Cal.3d 826, 832.)

       We reject defendant’s claim that his prior offenses should not be treated as strikes.

Defendant states that he “told my origional lawyer (Pub Defender) when I signed my




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‘deals’ in 1989 and 1991 they werent strikes and that using them as strikes at sentencing

was a breech of written court document,”2 but nothing in the record substantiates that

there was any such written agreement that the convictions would not be treated as strikes.

Indeed, it is difficult to understand how there could have been. First degree burglary was,

at the time of defendant’s plea agreements in his strike cases, statutorily necessarily

defined as a strike offense. (Pen. Code, § 1192.7, subd. (c)(18).) It is far too late at this

stage of the game to challenge whether those convictions qualify as strikes. As a matter

of law, they are strikes.

       Defendant’s constitutional claim is also without merit. Use of the strike

convictions does not offend double jeopardy principles. A three strikes defendant is not

being punished for the old offenses, but rather for the new offense. (See Witte v. United

States (1995) 515 U.S. 389, 399, [132 L.Ed.2d 351, 115 S.Ct. 2199] [“In repeatedly

upholding such recidivism statutes, we have rejected double jeopardy challenges because

the enhanced punishment imposed for the later offense . . . [is] ‘a stiffened penalty for the

latest crime, which is considered to be an aggravated offense because a repetitive

one.’”].)

       Defendant is to be commended for improving his life and circumstances while he

has been incarcerated, but he has not presented a legally cognizable argument to establish

that the trial court erred in its ruling.



       2    Italicized portions denote spelling, grammatical and punctuation errors in the
original.


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                                   DISPOSITION

     The order denying defendant’s petition to recall the sentence is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                             McKINSTER
                                                                                  J.
We concur:



HOLLENHORST
          Acting P. J.



MILLER
                        J.




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