Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. VA020803.
BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.
Appellant Brian Andrew Smith appeals from the order denying his motions for sentence reduction, withdrawal of plea and/or striking of prior plea bargain and resentencing. We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an “Opening Brief” containing an acknowledgment that she had been unable to find any arguable issues. On February 9, 2011, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider.
On March 7, 2011, appellant filed a supplemental brief. He states he has been incarcerated since March 25, 1994, and maintains that his 1984 prior conviction in case No. A087800 was illegally used to raise a charge of aiding and abetting a grand theft shoplifting offense to a 25-years-to-life sentence under the Three Strikes Law in breach of his plea agreement. Appellant asks this court to: (1) reduce his sentence pursuant to Title 18 United States Code sections 3553, subdivision (a)(6) and 3582, subdivision (b) and Title 28 United States Code section 994; (2) eliminate the disparity between his third-strike sentence and most other nonviolent and nonserious third-strike sentences handed down in Los Angeles after District Attorney Steve Cooley’s directive on three strikes sentencing was issued; (3) dismiss his prior conviction in case No. A087800 as being constitutionally invalid because he was not advised of the consequences of his plea; (4) vacate the judgment in case No. A087800 because the sentencing judge did not have an oath of office on file; and (5) vacate the judgment in case No. A087800 because it was not a strong-arm robbery but was erroneously elevated to that crime from the original charge of grand theft auto, even though the offense involved no weapon or violence.
We hereby take judicial notice of our unpublished opinion in People v. Smith (August 23, 2006, B187536) in which we noted that appellant was sentenced to 25 years to life in 1995 after a jury convicted him of grand theft in violation of Penal Code section 487, subdivision (a) and found that he had prior strike convictions under Penal Code section 667, subdivisions (b)–(i). We also noted that we had affirmed that judgment in a prior unpublished opinion, People v. Smith (Oct. 17, 1996, B094320).
Title 18 United States Code section 3553 recites sentencing factors to be considered, the application of sentencing guidelines, and other federal sentencing requirements. Title 18 United States Code section 3582, subdivision (a) explains the effect of finality of judgment in federal sentencing. Title 28 United States Code section 994 recites the duties of the United States Sentencing Commission, which establishes sentencing policies and practices for the federal criminal justice system.
The record contains an information dated April 27, 1994, showing that appellant was charged with two counts—grand theft of personal property (count 1) and petty theft with a prior (count 2). The information alleged that appellant had suffered, inter alia, three prior convictions of serious or violent felonies pursuant to Penal Code section 667, subdivisions (b) through (i) (the Three Strikes Law). One of appellant’s prior strike convictions was in case No. A087800, the case to which he refers in his contentions on appeal. This 1984 prior conviction, his oldest one, was for robbery in violation of Penal Code section 211.
On June 17, 2010, appellant filed in superior court two motions, which are the subject of this appeal. The first motion requested resentencing based on Steve Cooley’s directive and/or due to discriminatory prosecution. Appellant attached a memorandum from District Attorney Steve Cooley dated December 19, 2000, and directed to all deputy district attorneys handling criminal cases. Appellant also attached a study of the impact of the Three Strikes Law that was written by another inmate. The second motion requested sentence reduction pursuant to Title 18 United States Code section 3582, subdivision (c)(2), or withdrawal of prior plea bargains, and/or striking of a prior plea bargain as constitutionally invalid. This motion also asked for a reduction of sentence to eliminate the disparity between appellant’s third strike sentence and most other nonviolent and nonserious third strike sentences, particularly in light of District Attorney Steve Cooley’s directive. In addition, appellant moved to withdraw his prior strike plea bargains because they were used in case No. A087800 in breach of the original plea agreements, which was a violation of contract law. Appellant also requested the striking of his plea in case No. A087800 as being constitutionally invalid because he was not informed of the length of time he was required to serve on parole after release from prison. Finally, appellant asked to withdraw his plea bargain in that case because the sentencing judge had no oath of office filed at the time of his sentencing. Appellant attached a copy of the taking of the plea in case No. A087800 on January 9, 1984.
Appellant’s motions were heard and denied by Judge Daniel S. Murphy on June 17, 2010. Judge Murphy took judicial notice of the court file in People v. Brian Smith, the case in which appellant’s conviction from case No. A087800 was alleged as a strike, and he noted that appellant’s conviction and sentence were affirmed by this court on October 17, 1996. Judge Murphy noted that appellant had filed three petitions for writ of habeas corpus since that time—in April 1997, April 1998, and December 2001. Appellant’s petitions all addressed his conviction and three strikes sentence and were denied. In denying the first petition, the court noted appellant’s numerous convictions and his failures on probation and parole, as described in the appellate opinion. In denying the writ petition of December 18, 2001, the court noted that appellant was raising the same issues that had been previously litigated. Judge Murphy observed that on November 8, 2005, the superior court denied a motion filed by appellant in which he sought to vacate the judgment in his case. The court granted that part of appellant’s motion in which he sought to amend the abstract of judgment to reflect exactly the sentence handed down on May 5, 1995, including the priors and the third strike pronouncement. In denying appellant’s current motions, Judge Murphy found that appellant’s arguments concerning his conviction and three strikes sentence had been previously litigated and decided against him.
In our prior unpublished opinion, case No. B187536, we affirmed the trial court’s order resulting from appellant’s November 2005 petition and concluded that, contrary to appellant’s claim, his presence was not required when the court heard and decided his motion, since the court below merely corrected a clerical error.
All of appellant’s contentions on appeal were correctly rejected below. The transcript of the taking of the plea in appellant’s case No. A087800 shows that appellant pleaded guilty to robbery in violation of Penal Code section 211 and that his plea was knowing and voluntary. We have examined the entire record and are satisfied that appellant’s attorney has complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.