Opinion
E072750
09-10-2019
THE PEOPLE, Plaintiff and Respondent, v. ALEX KEITH SOWELL, Defendant and Appellant.
Jason L. Jones, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV020291) OPINION APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
On August 30, 2000, an information charged defendant and appellant Alex Keith Sowell with corporal injury to his child's parent under Penal Code section 273.5, subdivision (a) (count 1); assault by means likely to produce great bodily injury under former Penal Code section 245, subdivision (a)(1) (count 2); and battery under Penal Code section 242 (count 3). The information also alleged that defendant had suffered two prior strike convictions under Penal Code sections 1170.12, subdivisions (a), through (d), and 667, subdivisions (b), through (i).
In 2011, Penal Code section 245, subdivision (a)(1) was amended to separate assaults with force likely to cause great bodily injury from assaults with a deadly weapon. Assault with force likely to cause great bodily injury is now codified in Penal Code section 245, subdivision (a)(4). --------
On September 21, 2001, pursuant to a plea agreement, defendant pled guilty to an added count for non-premeditated attempted murder under Penal Code sections 664 and 187, subdivision (a) (count 4), with a great bodily injury enhancement under Penal Code section 12022.7, subdivision (a). Defendant also admitted a single strike prior, and a single serious felony prior under Penal Code section 667, subdivision (a)(1). On the People's motion, the court dismissed counts 1, 2, and 3. The parties agreed to a stipulated term of 26 years.
At the sentencing hearing on December 11, 2011, the trial court sentenced defendant to a 26-year prison term pursuant to the plea agreement. Defendant received the upper term of nine years on count 4, doubled to 18 years by the strike prior. The court added three additional years for the great bodily injury enhancement and five additional years for the serious felony prior.
On January 1, 2019, Senate Bill 1393 (SB 1393) became effective. SB 1393 amended sections 667, subdivision (a), and 1386, subdivision(b), to allow a court to exercise its discretion to strike or dismiss a prior serious felony for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)
On April 26, 2019, the trial court concluded that no further action was required on defendant's request to be resentenced pursuant to SB 1393. The court ruled that "Defendant's sentence was imposed by way of a negotiated plea agreement, as opposed to a discretionary sentencing choice by the judge."
On May 6, 2019, defendant filed a timely notice of appeal from the "denial motion for recall of sentence." (All caps omitted.)
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. 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 undertake a review of the entire record. Pursuant to Anders, counsel identified the following issues to assist the court in its search of the record for error: Is defendant entitled to resentencing pursuant to SB 1393's amendments to sections 667 and 1385?
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, considered the issues listed by appellate counsel, and find no arguable issue for reversal on appeal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.