Filed 11/20/13 P. v. Cardenas-Rodriguez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058389
v. (Super.Ct.No. CR67529)
MANUEL ISAIAS CARDENAS- OPINION
RODRIGUEZ,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Robert G. Spitzer and
Becky Dugan, Judges. Affirmed.
Alan Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
In 1997, defendant and appellant Manuel Isaias Cardenas-Rodriguez pleaded
guilty to several offenses related to possession of controlled substances, together with
offenses and enhancements relating to possession of firearms (substantive offense of
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possession of firearms by an ex-felon, and enhancements of possession of firearms in
connection with possession of drugs). Defendant was sentenced as a third striker to a
term of 26 years to life in state prison.
In 2012, after passage of the Three Strikes Reform Act of 2012 (Proposition 36),
reforming the California “Three Strikes” law, defendant filed a petition to recall his
sentence and for resentencing. The trial court denied defendant’s resentencing petition,
finding him ineligible for resentencing under Penal Code section 1170.126.
Defendant has filed a notice of appeal. We affirm the trial court’s ruling.
FACTS AND PROCEDURAL HISTORY
The salient events underlying the convictions took place in 1997. Sheriff’s
deputies received a tip from a confidential informant, to the effect that defendant was
living in a converted garage, and would trade methamphetamine or heroin for guns, tools,
or other property. Deputies conducted a parole search, which turned up some heroin
packaged in four bindles hidden near the shower. Defendant had some heroin and some
marijuana in his jacket pocket. Deputies also found a .22-caliber revolver and a nine-
millimeter handgun, as well as electronic and triple-beam scales (bearing traces of white
powder), and almost $2,000 in cash in various places in the house.
As a result, defendant was charged in count 1 with possession of heroin for sale
(Health & Saf. Code, § 11351), together with a gun possession enhancement (Pen. Code,
§ 12022, subd. (c)), in count 2 with possession of methamphetamine for sale (Health &
Saf. Code, § 11378), together with another gun possession enhancement (Pen. Code,
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§ 12022, subd. (c)), in counts 3 and 4 with being a felon in possession of a firearm (Pen.
Code, § 12021, subd. (a)(1)), in count 5 with possession of methamphetamine while
armed with a loaded firearm (Health & Saf. Code, § 11370.1), and in count 6 with
possession of heroin while armed with a loaded firearm (ibid.). The information also
alleged two prior serious offenses and two strike priors (both types of prior offense
allegations were based on the same two prior convictions for residential burglary).
Defendant ultimately pleaded guilty to the court to counts 1, 2, 3, 5, and 6, while
count 4 (one of the felon in possession of a firearm counts) was dismissed. Defendant
also admitted the firearm enhancements and the strike priors. The plea specified that
defendant would receive a three strikes life sentence, with a minimum of 26 years. The
court followed the sentence recommendation.
Since the time of sentencing, defendant has been serving his sentence in state
prison. In December 2012, after the passage of Proposition 36, reforming the California
Three Strikes law, defendant wrote to his former attorney, seeking assistance in filing a
petition for resentencing under Proposition 36. Defendant stated that he felt he qualified
for resentencing, because he viewed his 1997 (third-strike) offenses as nonviolent. The
court accepted defendant’s letter for filing as a petition for resentencing.
The People opposed defendant’s petition, on the ground that the current conviction
did not qualify for resentencing, because defendant was armed with a firearm in the
commission of the offenses. The People also alleged that defendant posed a risk of
danger to public safety. The trial court found defendant ineligible for resentencing under
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Penal Code section 1170.126, because defendant had admitted being armed with a
firearm with respect to some of the offenses to which he pleaded guilty.
Defendant appealed from the trial court’s order denying his petition for
resentencing.
ANALYSIS
Defendant has appealed, and this court has 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 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting
forth a statement of the case, and identifying one possible arguable issue on appeal:
whether the trial court properly denied defendant’s petition for three strikes resentencing.
Defendant has been afforded the opportunity to file a personal supplemental brief,
which he has done. He raises two potential arguable issues: whether the guilty pleas
were involuntary because defendant was not advised of the immigration consequences of
his plea, and whether he was wrongfully deprived of the benefit of being resentenced.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
conducted an independent review of the entire record and find no arguable issues.
Here, it is plain that the trial court properly denied defendant’s petition for three
strikes resentencing. Three strikes resentencing under Proposition 36 is intended to
benefit those three strikes offenders whose third-strike offenses are not violent or
dangerous. Under Penal Code section 1170.12, subdivision (c)(2)(C)(iii), a person is not
eligible for more lenient resentencing under the reform act if, “[d]uring the commission
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of the current offense, the defendant used a firearm, was armed with a firearm or deadly
weapon, or intended to cause great bodily injury to another person.” Defendant here
expressly admitted that he was armed with a firearm during the commission of some of
the offenses, and admitted enhancements that he was armed with a firearm in the
commission of others. The language of the Proposition 36 eligibility provisions is plain,
as the trial court determined, and defendant is statutorily ineligible for resentencing under
Proposition 36’s scheme.
Defendant raises a similar argument under the rubric that it was a part of his plea
bargain that he would receive the benefit of resentencing, if the Three Strikes law were
amended in the future. Defendant thus characterizes the issue as one of a violation of a
plea agreement. There was no plea bargain, as such. The trial court expressly pointed
out that the guilty pleas were made to the court, and not as a result of any plea bargain
with the People. It was a straight plea to the court. There was therefore no “plea
bargain” that could be breached. Moreover, there is nothing in the record whatsoever to
support defendant’s claim that he made the bargain “on the premise that if the [] Three
Str[i]kes Law . . . was to be amended in the future that [he] would receive the benefit of
being resentenced.” Whether defendant would be eligible for resentencing upon
amendment of the Three Strikes law is dependent entirely on the provisions of any such
amendment. As noted, the statutory provisions of Proposition 36 expressly provide that
defendant is not eligible for resentencing.
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As to defendant’s claim that his plea was involuntary because the court failed to
advise him that he could be deported as a consequence of the guilty plea, we find it is
without merit. First, this issue should have been raised on initial appeal from the
judgment in 1997. It is too late to raise it now. (People v. Senior (1995) 33 Cal.App.4th
531, 536.) Second, the record belies the claim. The trial court did expressly advise
defendant, on the record, during the taking of the plea, that he could be deported as a
result of the plea or conviction, if he was not a citizen of the United States.
After due examination of the record, we have discovered no arguable issues.
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed. To the extent
that the appeal purports to challenge the judgment, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
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