Opinion
B306337
01-20-2021
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE EDWARD COOKE, Defendant and Appellant.
Dwayne Edward Cooke, in pro per.; Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA064488) APPEAL from an order of the Superior Court of Los Angeles County. David W. Stuart, Judge. Affirmed. Dwayne Edward Cooke, in pro per.; Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
In 2010, a jury convicted appellant of attempted murder and assault with a deadly weapon and found certain sentence enhancement allegations true. In a bifurcated proceeding, appellant admitted that he had suffered two prior "strike" convictions under the "Three Strikes Law" (Pen. Code §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)): robbery convictions from 1988 and 1992. The trial court sentenced appellant to a total of 41 years to life in prison.
Undesignated statutory references are to the Penal Code. --------
In 2020, appellant petitioned for recall of his sentence. He argued his prior robbery convictions could not be used to increase his 2010 sentence because they predated the Three Strikes Law, which took effect in 1994. He also noted that his prior convictions resulted from plea bargains, and argued that using them to increase his current sentence constituted a breach of contract. Appellant maintained he was entitled to resentencing under the newly enacted section 1016.8, which precludes plea bargains from requiring that the defendant "generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea . . . ." (§ 1016.8, subd. (b).) The superior court summarily denied appellant's petition, and appellant timely appealed.
Appellant's appointed counsel filed a brief raising no issues and invoking People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Under Serrano, when appointed counsel raises no issue in an appeal from a post-judgment proceeding following a first appeal as of right, an appellate court need not independently review the record. (Id. at 498.) We directed counsel to send the record and a copy of the brief to appellant, and notified appellant of his right to respond within 30 days. Appellant filed a supplemental brief raising the same contentions he raised below.
Our obligation in reviewing this appeal is to "evaluate [the] arguments presented" in appellant's supplemental brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1040.) Appellant's arguments fail. His argument that the sentencing court could not treat his prior convictions as "strikes" because they predated the Three Strikes Law has been rejected time and again. (E.g., People v. Sipe (1995) 36 Cal.App.4th 468, 478-479; People v. Murillo (1995) 39 Cal.App.4th 1298, 1307-1308 [collecting cases].) Appellant's contractual claim fails, as he points to no agreement that precluded use of his prior convictions as "strikes" under the Three Strikes Law. Finally, section 1016.8 has no application to appellant, as he cites no retroactive benefit that he was required to waive as part of his prior plea bargains.
DISPOSITION
The superior court's order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.