Opinion
B301603
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. GERALD W. WOODS, Defendant and Appellant.
Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA054857) APPEAL from an order of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed. Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
On October 23, 2012, appellant was charged with criminal threats (count 1) in violation of Penal Code section 422 and dissuading a witness by force or threat (count 2) in violation of section 136.1, subd. (c)(1). The information further alleged that count 2 was a serious felony (§ 1192.7, subd. (c)(37)), and that appellant had four prior strike convictions (§ 1170.12, subds. (a)-(d)). The same four priors were also alleged as prior serious felony convictions within the meaning of section 667, subdivision (a).
Subsequent statutory references are to the Penal Code.
The evidence presented at trial showed that in December 2011, appellant shared an apartment with his girlfriend and her friend. After appellant threatened to harm his girlfriend, the friend called the police, and appellant fled the apartment. Two days later, appellant approached the friend while she stood waiting at a bus stop. He held a gun to her head and threatened to shoot her. When the bus arrived a few minutes later, appellant warned the friend that if she reported the threat to anyone, he would shoot the bus driver and the gas tank on the bus.
The jury convicted appellant of both offenses. On December 18, 2012, after considering the evidence and arguments from both parties, the trial court found three of the priors true and proceeded to sentence appellant to a total of 60 years to life in state prison. The court imposed consecutive three strike sentences of 25 years to life on each count and enhanced each count by five years pursuant to section 667, subdivision (a). Thereafter, in May 2013, appellant filed an appeal challenging his sentences. He argued that the trial court erred in failing to exercise its discretion to dismiss two of his prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. This court rejected that argument, and in September 2013, affirmed the judgment. (See People v. Woods (Sept. 20, 2013, B246870) [nonpub. opn.].)
On September 16, 2019, appellant filed a petition requesting relief under Proposition 36 as to his count 2 sentence. He argued that he was entitled to be resentenced under section 1170.126 because his conviction of dissuading a witness was neither serious nor violent. On September 18, 2019, the trial court denied his petition because both of appellant's convictions qualified as serious felonies, and thus they were excluded from the sentencing reforms in Proposition 36.
Appellant timely filed a notice of appeal, indicating that he was appealing from the order denying a petition for resentencing pursuant to Proposition 36. We appointed counsel to represent appellant in the matter. After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) On February 13, 2020, we directed appointed counsel to immediately send the record on appeal and a copy of the opening brief to appellant. We notified appellant that within 30 days from the date of the notice, he could submit by letter or brief any ground of appeal, contention, or argument, he wished us to consider. We received no response.
We have independently examined the entire record and are satisfied that appellant's counsel has fully complied with her responsibilities and, as we discuss below, that no arguable appellate issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106, 110.)
Here, the trial court stated a valid reason for denying appellant's petition for resentencing. Appellant is not entitled to relief under Proposition 36 because his dissuading a witness conviction under section 136.1 is defined as a serious felony (§ 1192.7, subd. (c)(37)), which renders him ineligible for resentencing under section 1170.126 as a matter of law. (See § 1170.126, subds. (b) & (e)(1).) Consequently, the trial court properly denied his petition. No other basis for appeal appears in the record and, accordingly, we affirm.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------