Opinion
C088247
11-06-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WILLIAM GUILFORD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 94F04208)
Appointed counsel for defendant Michael William Guilford asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the order denying defendant's second petition to recall his sentence.
I
Defendant was convicted of spousal battery in 1994 and the trial court found true allegations that defendant had three prior strike convictions and had served two prior prison terms. The trial court sentenced defendant to an indeterminate state prison term of 25 years to life plus a determinate term of two years. (People v. Guilford (Oct. 30, 1996, C019691) [nonpub. opn.] p. 1.)
This court affirmed defendant's conviction but remanded the matter for the trial court to exercise its discretion whether to dismiss any of defendant's strike conviction allegations. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497; see People v. Guilford, supra, C019691, at pp. 28-29, 36-37.) On remand the trial court declined to dismiss the strikes and reinstated the sentence previously imposed. (People v. Guilford (Jan. 16, 1998, C026446) [nonpub. opn.].) This court affirmed. (Ibid.)
In 2013, defendant filed a petition to recall his sentence under the Three Strikes Reform Act of 2012, enacted by Proposition 36. (People v. Guilford (2014) 228 Cal.App.4th 651, 654 (Guilford).) The trial court concluded defendant was ineligible for resentencing because he was a person who, during the commission of the current offense, intended to cause great bodily injury to another person. (Ibid.) This court affirmed the trial court's order denying the first petition to recall defendant's sentence. (Ibid.)
In 2018, defendant filed a second petition to recall his sentence, relying on People v. Frierson (2017) 4 Cal.5th 225. Defendant argued the petition was timely based on the new law established by Frierson, i.e., that ineligibility for resentencing must be proved beyond a reasonable doubt. In the alternative, defendant argued his prior petition was revived. The trial court determined it lacked jurisdiction to reconsider the prior denial because the prior order included the finding, based on the facts as recited in Guilford, supra, 228 Cal.App.4th 651, that defendant intended to cause great bodily to the victim "under either the reasonable doubt or preponderance standard." Defendant filed a timely appeal from the order denying his second petition.
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The order denying defendant's second petition is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
RENNER, J.