Opinion
H043587
02-09-2017
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE JOSEPH PETITTA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1154589)
In 2012, defendant Lawrence Joseph Petitta pleaded guilty to second-degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), and admitted that he had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and two prior serious felony convictions pursuant to section 667, subdivision (a). In 2013, the court struck the prior strike convictions pursuant to section 1385 and imposed the middle term for the robbery plus 10 years for the two prior serious felony convictions for a total of 13 years. Prior to defendant's plea and sentencing, the court suspended criminal proceedings and ordered psychiatric evaluation as to defendant's competency. Based on three psychiatric reports, the trial court found that defendant was competent and reinstated criminal proceedings.
All further statutory references are to the Penal Code.
Defendant filed a timely notice of appeal. This court affirmed the judgment on August 14, 2014 in case number H040178.
We granted defendant's request for judicial notice of our opinion in that case on September 20, 2016. --------
On August 31, 2015, defendant filed a "Motion for Modification of Sentence Pursuant to Penal Code § 1170.1(d))." The motion requested that the trial court strike his two prior serious felonies convictions and resentence him accordingly. This request was based on "Defendant's nature and background character and the particulars of the circumstances." On September 4, 2015, the court denied the motion based on lack of jurisdiction.
On September 22, 2015, defendant filed an " 'Augmented' Motion for Modification of Sentence." Defendant asserted the same arguments as he did in his first motion filed on August 31, 2015. On October 6, 2015, the court denied the motion to augment and to modify his sentence for lack of jurisdiction.
On October 20, 2015, defendant renewed his request for an augmentation of the record for consideration with his motion to modify his sentence. On October 23, 2015, the court again denied the motion and explained it lacked jurisdiction to modify the sentence.
Defendant sent two notices of appeal to the superior court, which were marked "received" on January 15, 2016 and January 27, 2016. The notice received on January 15, 2016 stated that defendant sought to appeal the "Oct. 23, 2015-Nov. 11, 2015 'Request to be Heard.' " Defendant filed a request for a certificate of probable cause with the January 15, 2016 notice of appeal. The notice received on January 27, 2016 stated that he sought to appeal the order dated "Nov. 2015."
On appeal, we appointed counsel to represent defendant in this court. On June 27, 2016, appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), which states the case and the facts but raises no specific issues. Pursuant to Serrano, on July 13, 2016, we notified defendant of his right to submit written argument on his own behalf within 30 days.
On August 9, 2016, we received a memorandum from defendant asserting arguments on his behalf. The case was fully briefed, and a submission order was filed on September 21, 2016.
On November 17, 2016, this court granted defendant permission to file an untimely supplemental brief and on the court's own motion, vacated the original submission date of September 21, 2016. A new submission order was filed on November 17, 2016.
In his filings, defendant asserts that the trial court impaired his plea bargain agreement making it an "unconscionable contract," because defendant was not "made aware" that his conviction in this case could result in enhanced punishment for a future conviction. He argues that the California sentence enhancements laws are "retro-active" and violate federal law. Defendant argues that California needed to secure a 75 percent majority vote of the United States Congress in order to enact such laws, and because that was not done, his sentence in this case was unlawful.
In addition, defendant asserts that the California Department of Corrections (Department) is engaging in the "surgical implantation of electrodes into brain tissue of prisoners for the purposeful infliction of pain." He goes on to argue that such conduct is cruel and unusual punishment under the Eight Amendment. While he does not specifically state that electrodes were implanted into his brain, he does assert that the Department has denied him access to x-rays and MRI film of his brain tissue.
Defendant does not raise an arguable issue on appeal. The serious felony enhancement in section 667, subdivision (a) that was applied to defendant's sentence in this case does not violate federal law. In addition, there is no basis for the argument that the Department is implanting electrodes into the brains of prisoners as a form of punishment.
As nothing in defendant's supplemental brief raises an arguable issue on appeal, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.