Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA157404
THE COURT:In 1998, Donald Eugene Joseph (appellant) was convicted of a 1997 attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664/187, subd. (a)) with trial court findings of the use of a knife (§ 12022, subd. (d)(1)), and the infliction of great bodily injury (§ 12022.7, subd. (a)). The trial court also found true that he had three prior serious felony convictions that qualified him for three 5-year enhancements, as well as sentencing pursuant to the three strikes law (§§ 667, 1170.12). On March 25, 1998, the trial court sentenced him to an indeterminate term of 25 years to life, plus a determinate term of 19 years, comprised of one year for the weapon-use enhancement, three years for the infliction of great bodily injury, and 15 years for the three 5-year enhancements as appellant had the three prior convictions of a serious felony.
All further statutory references are to the Penal Code unless otherwise indicated.
He appealed from the judgment. In November 1999, this court ordered the judgment modified to impose a parole revocation restitution fine, and ordered the judgment affirmed, as modified. (People v. Donald E. Joseph, B121088, filed Nov. 17, 1999 [nonpub. opn.].) On April 4, 2000, the remittitur issued.
On April 4, 2007, appellant caused to be filed in the trial court an “Application and/or Petition for Time Modification. Cunningham v. California 549 U.S. ___ (2007).” Therein, appellant requested “a Time Reduction and/or Modification” of time based on the new ruling in the decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham).
This court ordered the superior court file transmitted to it and then ordered the appellate record augmented with the “Application and/or Petition for Time Modification Cunningham v. California 549 U.S. ___ (2007),” filed by appellant in the trial court on April 4, 2007. This court has given the parties notice that the record has been augmented. (Cal. Rules of Court, rules 8.155, 8.340.) We also note that this appellate record contains a petition for habeas corpus filed by appellant in the year 2000. The year 2000 petition is not the basis for the current appeal.
On April 6, 2007, the trial court denied appellant’s request for a modification of the judgment, as follows: “This case does not apply to [appellant] as [appellant] was sentenced to life with the possibility of parole pursuant to Penal Code section 664 (a). As this is an indeterminate life term and Cunningham . . . refers to determinate terms, your petition must fail. Furthermore, as the [appellant] had two prior strikes pursuant to [the three strikes law], the minimum sentence was 25 years to life. With the additional enhancements and allegations, the [trial] court’s sentence is not changed by Cunningham, supra. The motion for modification is denied.”
Thereafter, on May 3, 2007, appellant filed a hand printed document entitled, “Appeal and/or Motion Requesting Reconsideration Hearing in regards to his qualifying under Cunningham v. California due to an Error by the Court in the Breakdown of Petitioner’s Sentence.” In that document, appellant asserted that as the jury had given him the 19-year determinate term, appellant qualified for “consideration under the new Cunningham ruling.”
The trial court treated the document, filed May 3, 2007, as a notice of appeal from the trial court’s order of April 6, 2007.
We appointed counsel to represent appellant on this appeal.
After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.
On October 18, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
No response has been received to date.
At sentencing in 1998, the trial court imposed a determinate term of 25 years to life, plus determinate terms of 19 years occasioned by five enhancements. Apart from the issue of whether the order of April 6, 2007 is an appeal able order within the meaning of section 1237, subdivision (b) (People v. Thomas (1959) 52 Cal.2d 521, 528-529), appellant is ineligible for relief because his judgment was final prior to the date on which the decision was filed in Apprendi v. New Jersey (2000) 530 U.S. 466, and well before the date of the filing of the Cunningham decision. (Caspari v. Bohlen (1994) 510 U.S. 383, 390-391 [state convictions are final for retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied]; In re Consiglio (2005) 128 Cal.App.4th 511, 515-516; People v. Amons (2005) 125 Cal.App.4th 855, 867-868.)
Furthermore, as the trial court determined, the decision in Cunningham does not apply to the imposition of an indeterminate term. (See Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 871].) And, the determinate terms employed here for the enhancements were all terms that constituted a “statutory maximum.” (See Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 865].) In other words, the enhancements were not punishable by a triad of terms, with the middle term being the presumptive statutory maximum. Rather, each of the enhancements imposed was punishable by only one term, which was the statutory maximum, and the trial court imposed that term. Thus, appellant’s sentence conformed to the decision in Cunningham.
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.