Filed 6/26/13 P. v. Smith 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058380

v.                                                                       (Super.Ct.No. FSB05283)

WILLIAM SHAWN SMITH,                                                     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.

         Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       Defendant William Shawn Smith appeals from an order denying his petition for

recall of his indeterminate life term, under Penal Code section 1170.126, subdivision (f).1

We will affirm the order.

                                       BACKGROUND

       Defendant was convicted in December 1995 of one count of attempted carjacking

(§§ 644, 215, subd. (a)) and one count of second degree robbery (§ 211). Two strike

prior allegations and two prison priors were found true. (§§ 667, subds. (b)-(i), 667.5,

subd. (b).) In February 1996, the court sentenced defendant to 25 years to life on the first

count, and stayed a sentenced of 25 years to life on the second count, pursuant to section

654. The court also stayed one-year terms imposed for the prison priors.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act. Among other things, this ballot measure enacted section

1170.126, which permits persons currently serving an indeterminate life term under the

three strikes law to file a petition in the sentencing court, seeking to be resentenced to a

determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court

determines, in its discretion, that the defendant meets the criteria of section 1170.126,

subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

       Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is

eligible for resentencing if he or she is serving an indeterminate term of life

imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or


       1   All further statutory citations refer to the Penal Code.

                                               2
subdivision (c) of Section 1170.12 “for a conviction of a felony or felonies that are not

defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or

subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).) Defendant’s current

conviction is for one serious felony and one violent felony.2 On November 14, 2012,

defendant filed a petition for writ of habeas corpus essentially conceding that he does not

qualify for resentencing by the terms of the statute, but asserting that section 1170.126

violates his constitutional right to the equal protection of the law because it differentiates

between individuals sentenced under the three strikes law for nonviolent, nonserious

felonies and individuals sentenced under the three strikes law for violent and/or serious

felonies.

       The trial court deemed the petition to be a petition for recall of sentence under

section 1170.126 and appointed the public defender to represent defendant, who waived

his presence. On March 15, 2013, after a hearing, the court denied the petition, finding

that defendant’s crimes are serious felonies under section 1192.7.

       Defendant filed a timely notice of appeal.




       2Attempted carjacking is a serious felony. (§ 1192.7, subd. (c)(27), (c)(39).)
Robbery of any kind is a violent felony. (§ 667.5, subd. (c)(9).)

                                              3
                                   LEGAL ANALYSIS

                          DEFENDANT’S COUNSEL’S BRIEF

       We appointed counsel to represent defendant on appeal. After examination of the

record, counsel filed an opening brief raising no issues and asking this court to

independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)

       Counsel stated that she had considered as a possible issue whether the trial court

erred in denying defendant’s petition for resentencing. Robbery of any kind is a violent

felony. (§ 667.5, subd. (c)(9).) Attempted carjacking is a serious felony.3 (§ 1192.7,

subd. (c)(27), (c)(39).) Accordingly, defendant is not eligible for resentencing pursuant

to section 1170.126, subdivision (f).

       We have independently examined the record and have found no arguable issues.

We are satisfied that defendant’s attorney has fully complied with her responsibilities and

that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v.

Wende, supra, 25 Cal.3d at p. 441.)

                       DEFENDANT’S SUPPLEMENTAL BRIEF

       We offered defendant the opportunity to file any supplemental brief he deemed

necessary. He did so, again raising his equal protection contention. We reject that

contention.




       3 Attempts, other than attempted murder, are not included in section 667.5,
subdivision (c), as violent felonies. (People v. Reed (2005) 129 Cal.App.4th 1281, 1284-
1285 & fn. 1.)

                                             4
       For purposes of equal protection, most legislation is tested only to determine if the

challenged classification bears a rational relationship to a legitimate state purpose.

(People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.) “[A] statutory classification that

neither proceeds along suspect lines nor infringes fundamental constitutional rights must

be upheld against equal protection challenge if there is any reasonably conceivable state

of facts that could provide a rational basis for the classification. Where there are

plausible reasons for [the classification], our inquiry is at an end.” (Id. at pp. 1200-1201,

internal quotation marks and citations omitted.) “[T]hose attacking the rationality of the

legislative classification have the burden to negative every conceivable basis which might

support it.” (Id. at p. 1201, internal quotation marks and citations omitted.)

       For purposes of a statute which offers a substantial reduction in sentence, it is

clearly rational to distinguish between inmates convicted of serious or violent offenses

and inmates convicted of nonserious or nonviolent offenses. Defendant offers no

argument to the contrary. Accordingly, he has failed to meet his burden “‘“to negative

every conceivable basis”’” which supports the legislation’s distinction. (People v.

Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.)




                                              5
                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                 McKINSTER
                                                             Acting P. J.
We concur:



RICHLI
                         J.



KING
                         J.




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