Filed 8/1/14 P. v. Reed 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060838

v.                                                                       (Super.Ct.No. RIF148680)

ANTOINE REED,                                                            OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michele D. Levine,

Judge. Affirmed.

         Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                                              I

                                       INTRODUCTION

       On May 26, 2009, an amended information charged defendant and appellant

Antoine Reed with unlawful possession of a controlled substance, to wit, cocaine (Health

& Saf. Code, § 11350, subd. (a)), with four prior prison terms (Pen. Code,1 § 667.5, subd.

(b)). The amended information also alleged two prior robbery convictions under section

211, which qualified as prior strike offenses under the Three Strikes law (§§ 667, subds.

(c), (e)(2); 1170.12, subd. (c)(2)).

       Following his conviction, on September 29, 2009, the trial court denied

defendant’s motion to dismiss one of the prior strikes in the interests of justice.

Thereafter, the court sentenced defendant to prison for 25 years to life, plus four years for

the prior prison terms, for a total of 29 years to life. The court awarded defendant 345

days of presentence custody credits, including 231 actual and 114 local conduct days.

       On January 22, 2013, defendant filed a petition to recall his indeterminate life

sentence under the newly amended Three Strikes law. After numerous continuances, on

January 24, 2014, the trial court granted defendant’s petition and resentenced defendant

to the high term of three years, doubled for his one prior strike, plus four years for the

prior prison terms, for a total of 10 years. The court awarded custody credits for 1,923

actual days and indicated that the Department of Corrections would be calculating the




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

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additional conduct credit. The court also ordered that, upon release, defendant be placed

on post-release community supervision.

       On March 25, 2014, defendant filed a timely notice of appeal.

                                             II

                               STATEMENT OF FACTS

       On February 2, 2009, defendant purchased $20 worth of cocaine base from an

undercover officer. On September 29, 2009, under the Three Strikes law in effect at the

time, defendant received an indeterminate life sentence.

       After Proposition 36 was passed, defendant filed a petition for recall of his

sentence as a second strike offender under section 1170.126. Defendant, now 56 years

old, submitted a psychological evaluation and letters of support from family members

and other individuals. Some of these individuals spoke on defendant’s behalf at the

resentencing hearing. They pointed out that, with the exception of a minor infraction for

manufacturing a cigarette lighter, defendant had remained crime-free since his

incarceration. Defendant also told the court that he had been attending self-help groups

and benefiting from therapy during the past four years.

       The prosecution opposed defendant’s petition. It claimed that defendant posed an

unreasonable risk of danger to society. Hence, defendant was ineligible for resentencing

under section 1170.126, subdivision (f). In support, the prosecution listed defendant’s

prior criminal history, which included the following: (1) juvenile arrests; (2) 1976 and

1980 robberies; (3) parole violations in 1983 and 1984; (4) a 1986 drug sale; (5) a 1986


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misdemeanor petty theft with a prior; (6) a 1991 possession of a firearm by a felon; (7)

loitering in 1993; (8) a 1994 misdemeanor battery; and (9) manufacturing a cigarette

lighter in prison in 2012.

       The trial court opined that defendant’s recent criminal history did not involve

violence, but stemmed from defendant’s substance abuse problems and that defendant did

not pose an unreasonable risk of danger to society. Therefore, the court granted

defendant’s petition and proceeded to resentence defendant. Defendant requested that the

court impose the mid-term, not the high term, because the aggravating circumstances did

not substantially outweigh the mitigating circumstances. The prosecution requested the

high term.

       The trial court selected the high term, not based on the aggravating circumstances

of the offense, but based on defendant’s criminal history. The court ordered defendant to

serve three years, doubled pursuant to the one prior strike, plus four years for the prior

prison terms, for a total of 10 years.

                                              III

                                         ANALYSIS

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. 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, a summary of the facts, and potential arguable issues, and requesting this court

to undertake a review of the entire record.


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      We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we

have conducted an independent review of the record and find no arguable issues.

                                          IV

                                    DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                             RICHLI
                                                                                          J.

We concur:


McKINSTER
               Acting P. J.


MILLER
                         J.




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