Filed 11/21/13 P. v. Aguayo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058421
v. (Super.Ct.No. FSB026475)
GABRIEL AGUAYO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Gabriel Aguayo appeals from an order denying his
petition for recall of his indeterminate life term under Penal Code section 1170.126,
subdivision (f).1 We will affirm the order.
I
PROCEDURAL BACKGROUND
On December 29, 2000, a jury found defendant guilty of one count of residential
burglary (§ 459, count 2); two counts of assault with a firearm (§ 245, subd. (a)(2), counts
3 & 5); and one count of possession of a firearm by a felon (§ 12021, subd. (a), count 6).2
In addition, the jury found true the special allegation that defendant personally used a
firearm within the meaning of section 12022.5, subdivision (a)(1), in the commission of
the assaults. In a bifurcated bench trial, the trial court found true the special allegations
that defendant had suffered three prior serious or violent felony convictions (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667,
subd. (a)(1)), and three prior prison terms (§ 667.5, subd. (b)). On September 11, 2001,
after granting defendant’s motion for a new trial on counts 2 and 3, and denying
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The jury found defendant not guilty of two counts of robbery. (§ 211, counts 1
& 4.) The jury also found not true the special allegations that in the commission of the
robbery in count 1 and the residential burglary defendant had personally used a firearm,
to wit, a rifle, and that in the commission of the robbery in count 4 defendant had
personally and intentionally discharged a firearm, to wit, a rifle.
2
defendant’s motion for a new trial on counts 5 and 6, the trial court sentenced defendant
to a total term of 42 years to life in state prison under the three strikes law.3
Defendant subsequently appealed to this court. Defendant’s claims were rejected
and the judgment was affirmed. (People v. Aguayo (Aug. 23, 2002, E030343) [nonpub.
opn.].) Defendant later sought federal habeas relief. The federal district court denied
defendant’s request for relief. (Aguayo v. Ollison (C.D. Cal., Mar. 20, 2008, No. ED CV
07-607 RGK (SH)) 2008 U.S. Dist. Lexis 25373.)
On November 6, 2012, the electorate passed Proposition 36, also known as the
Three Strikes Reform Act. Among other things, this ballot measure enacted section
1170.126, which permits persons currently serving an indeterminate life term under the
three strikes law to file a petition in the sentencing court, seeking to be resentenced to a
determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court
determines, in its discretion, that the defendant meets the criteria of section 1170.126,
subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is
eligible for resentencing if he or she is serving an indeterminate term of imprisonment
imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of
3 Defendant’s sentence consisted of the following: 25 years to life for the assault
with a firearm conviction in count 5, plus 10 years for the personal firearm use finding
attached to count 5; five years for one of the prior serious felony convictions, plus two
one-year terms for two prior prison term findings; and with respect to the possession of a
firearm by a felon (count 6), a stayed sentence pursuant to section 654. The trial court
struck one of the prior serious felony convictions and one of the prior prison term
findings. The trial court subsequently granted the prosecution’s motion to dismiss counts
2 and 3.
3
Section 1170.12 “for a conviction of a felony or felonies that are not defined as serious
and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.” (§ 1170.126, subd. (e)(1).)
On February 19, 2013, defendant filed in pro. per. a petition for resentencing
under section 1170.126. The trial court denied the petition on March 21, 2013, because
defendant’s current commitment offense for assault with a firearm, with a special
allegation for use of a firearm, is a serious and/or violent felony under section 667,
subdivision (e)(2)(C)(iii), which made defendant ineligible for resentencing under section
1170.126, subdivision (e)(2). Defendant filed a timely notice of appeal.
II
DISCUSSION
We appointed counsel to represent defendant on appeal. After examination of the
record, 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 conduct an
independent review of the record.
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 and find no arguable issues.
Defendant’s current commitment conviction for assault with a firearm with an
enhancement allegation that defendant used a firearm in the commission of the assault is
4
a serious and/or violent felony within the meaning of section 667, subdivision
(e)(2)(C)(iii).
III
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
5