Filed 5/25/16 P. v. Holt CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


THE PEOPLE,

     Plaintiff and Respondent,                                         G050663

         v.                                                            (Super. Ct. No. 97NF2363)

DANA ANTONIO HOLT,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Gregg L. Prickett, Judge. Affirmed.
                   Kenneth H. Nordin, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
              Dana Antonio Holt appeals from the trial court’s postjudgment order
denying his petition for recall of sentencing (Pen. Code, § 1170.126). Holt argues the
court erred by denying his petition because his conviction for conspiracy to commit
robbery was not a serious or violent offense when he committed it. After briefing in this
case was complete, the California Supreme Court filed its opinion in People v. Johnson
(2015) 61 Cal.4th 674 (Johnson), and we invited the parties to submit supplemental briefs
on its applicability. In its supplemental brief, the Attorney General argues Johnson
requires we affirm. Holt, however, argues Johnson does not dispose of his claim because
cases are not authority for propositions not considered. As we explain below, we agree
with the Attorney General. We affirm the postjudgment order.
                                          FACTS
              In 1998, a jury convicted Holt of conspiracy to commit robbery (Pen. Code,
§§ 182.1, 211, all further statutory references are to the Pen. Code). At a bifurcated
bench trial, the trial court found Holt suffered two prior serious felony convictions for
robbery. This was his third strike conviction (§§ 667, subds. (d) & (e)(2), 1170.12,
subds. (b) & (c)(2)). The court sentenced Holt to 25 years to life in prison.
              In March 2013, Holt filed a petition for recall of sentencing pursuant to
section 1170.126. The trial court denied that petition. In our prior nonpublished opinion
People v. Holt (May 9, 2014, G048465) [nonpub. opn.], we affirmed based on procedural
grounds—Holt filed his petition in propria persona while he was represented by counsel.
In July 2016, Holt’s counsel filed a petition for recall of sentencing pursuant to
section 1170.125. The trial court denied Holt’s petition, ruling the commitment offense,
conspiracy to commit robbery, was a serious felony.
                                       DISCUSSION
              The Three Strikes Reform Act of 2012 (the Act), amended sections 667 and
1170.12 and added section 1170.126. As relevant here, section 1170.126 allows



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defendants serving a life term for a third strike to petition for resentencing if eligible and
not dangerous. (See § 1170.126, subds. (b)-(g).)
               Section 1170.126, subdivision (b), provides as follows: “Any person
serving an indeterminate term of life imprisonment imposed pursuant to [the “Three
Strikes” law] upon conviction, whether by trial or plea, 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, may file a petition for a recall of sentence . . . or . . . to
request resentencing in accordance with the provisions of subdivision (e) of [s]ection
667, and subdivision (c) of [s]ection 1170.12, as those statutes have been amended by the
act that added this section.” (Italics added.)
               When the jury convicted Holt of conspiracy to commit robbery in 1998, the
offense was not listed as a serious or violent felony. Conspiracy to commit robbery
became a serious felony in March 2000, when Proposition 21, the Gang Violence and
Juvenile Crime Prevention Act of 1998, added conspiracy to section 1192.7’s list of
serious felonies. (§ 1192.7, subd. (c)(19) & (42).) Thus, since 2000, section 1192.7,
subdivision (c)(19), makes a robbery a serious felony, and subparagraph (42), makes
“any conspiracy to commit an offense described in this subdivision[]” a serious felony.
               In Johnson, supra, 61 Cal.4th at page 683, our Supreme Court held the
classification of the current offense as a serious or violent felony is determined as of the
date the Act became effective, relying on “section 1170.126’s use of the present verb
tense in describing the character of the current offense, the parallel structure of the
[Act’s] sentencing and resentencing provisions, and the ballot arguments in support of
Proposition 36.” Because conspiracy to commit robbery was classified as a serious
felony on the Act’s effective date, Holt was ineligible for recall of his sentence under
section 1170.126, and the trial court did not err by denying his petition.
               Citing to the maxim that cases are not authority for propositions not
considered (People v. Avila (2006) 38 Cal.4th 491, 566), Holt contends Johnson is not

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controlling because the “court did not consider the relevant language of section 1170.126,
subdivision (b),” citing to section 667, subdivision (e), and section 1170.12,
subdivision (c). Acknowledging the Johnson court did consider other language in
section 1170.126, subdivision (b), and found it ambiguous, Holt claims the language he
cites to “is not ambiguous” and adds there was no need for the Johnson court to consider
the Act’s parallel structure or ballot materials.
              The Johnson court discussed in great detail the Act and section 1170.126.
In essence, Holt asks this court to conclude the Johnson court failed to identify the
relevant portions of section 1170.126 and performed flawed statutory analysis. We
disagree, and in any event, because we are bound by Johnson (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455), we decline Holt’s invitation.
                                       DISPOSITION
              The postjudgment order is affirmed.


                                                    O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.




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