Opinion
E069103
03-05-2018
THE PEOPLE, Plaintiff and Respondent, v. BOBBY JOE JIMMERSON, Defendant and Appellant.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FRE01435) OPINION 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. Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
The Three Strikes Reform Act of 2012 (Proposition 36) permits third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies to petition for resentencing. (Pen. Code, § 1170.126 et seq.) If a petitioning offender satisfies the statute's eligibility criteria, they are resentenced as a second strike offender "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
All future statutory references are to the Penal Code unless otherwise stated.
Defendant and appellant Bobby Joe Jimmerson appeals from an order denying his petition for recall and resentencing of his indeterminate sentence of 25 years to life for his current commitment offense of first degree residential burglary (§ 459) under section 1170.126, subdivision (f). Based on our independent review of the record, we find no error and affirm the order.
II
FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 1995, defendant committed a string of residential burglaries in San Bernardino County.
In a second amended felony complaint filed on October 11, 1995, defendant was charged with six counts of first degree residential burglary (§ 459; counts 1, 2, 4, 5, 7, & 8), one count of receiving stolen property (§ 496, subd. (a); count 3), and one count of attempted first degree residential burglary (§§ 664/459; count 6). The second amended complaint further alleged that defendant had suffered two prior serious felony convictions (§ 667, subd. (a)(1)) and two prior serious or violent felony strike convictions (§ 667, subds. (b)-(i)) based on residential burglaries committed in 1989 and 1993.
On October 27, 1995, pursuant to a negotiated disposition, defendant pled guilty to one count of first degree residential burglary (count 2) and admitted he had suffered two prior strike convictions. In return, the remaining counts and enhancement allegations were dismissed and defendant was sentenced to a total indeterminate term of 25 years to life in state prison with credit for time served.
In 2013, defendant apparently filed a petition for recall of his sentence under section 1170.126. On August 16, 2013, the trial court denied the petition, finding defendant's current commitment offense of residential burglary was a serious felony, making him ineligible under section 1170.126, subdivision (e).
Defendant's petition does not appear in the record. However, the court's minute order dated May 2, 2013 notes, "The Court has read and considered Petition for Recall of Sentence pursuant to PC1170.126," and appointed the public defender's office to represent defendant.
In 2015, defendant wrote a letter to the court reporter, asking for "a copy of the Prop 47 Application/Petition for Resentencing Response and order." The trial court filed the letter on January 29, 2015. On February 5, 2015, the court submitted a "Request for Review of 1170.18 Petition (Prop 47)" to the district attorney's office. On March 10, 2015, the court filed a response to defendant's petition for resentencing pursuant to section 1170.18, finding defendant was not entitled to the relief requested because of an "ineligible charge."
On April 21, 2015, defendant filed a form petition for resentencing, pursuant to section 1170.18, where he stated he was still serving a sentence on the felony count of burglary, was in custody, and was petitioning for resentencing. The trial court set a hearing for June 2, 2015.
On June 2, 2015, the court denied the petition for resentencing, finding "that Petitioner does not satisfy the criteria in Penal Code 1170.18 and is not eligible for resentencing."
The trial court subsequently received a document from defendant entitled "Notice of Motion for Dismissal Penal Code Section: 290 Mandatory Registration." The document had no case number and was dated April 14, 2017. Defendant asked the court to order that he need not register as a sex offender because of a prior conviction of indecent exposure. Although the instant case (San Bernardino Superior Court case No. FRE01435) did not involve a charge of indecent exposure, its case number appeared on a request for further action by a deputy clerk to the court with regard to defendant's submission, dated May 23, 2017. The court issued an order on June 8, 2017, noting: "The defendant entered into a plea agreement and was sentenced in 1995—case number FRE01435[.] The motion to dismiss as filed is not timely in this court." The deputy clerk then apparently sent a reject letter to defendant, returning his paperwork and stating the court's ruling noted above.
The court's minute order dated August 17, 2017, bearing the case number of the instant matter (San Bernardino Superior Court case No. FRE01435), stated: "Action came on for Motion for Clarification and dismissal to mandatory registration filed in case MRE-8916." The record does not contain any motion for clarification or other documents filed by defendant between the date of the clerk's reject letter and August 17, 2017. In any event, the trial court ruled as follows:
"Defendant's request for re-sentencing on 3 strike case FRE01435 is denied.
"Defendant is statutorily ineligible for relief under PC1170.126 due to the nature of charge PC459(1st).
"Court rules petitioner is not required to register as sex offender for violation of PC314 in case MRE8916."
Defendant's appellate counsel wrote a letter to the trial court judge, requesting the superior court provide the Department of Corrections and Rehabilitation with a certified copy of the court's order stating defendant is not required to register as a sex offender in case No. MRE8916. This court received a copy of that letter on January 2, 2018. --------
On September 7, 2017, defendant filed a notice of appeal, stating he "appeals from the order the Superior Court County of San Bernardino, Dept; S21 entered on August 17, 2017 denying petitioner re-sentencing on 3 strike case FRE01435 is denied." (Sic.)
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. 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 conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The order denying defendant's petition to recall his sentence is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.