Filed 4/4/14 P. v. Long 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E059938
v. (Super.Ct.No. FWV013260)
RAYMOND LEON LONG, JR., 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.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Raymond Leon Long, Jr., appeals after the trial court
denied his petition for resentencing under Penal Code section 1170.126, known as the
Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,
1
2012)).1 A notice of appeal was filed on defendant’s behalf on October 29, 2013.2 We
affirm.
PROCEDURAL BACKGROUND
On September 29, 1998, a jury found defendant guilty of one count of robbery.
(§ 211.) A trial court found that he had two prior strike convictions. (§§ 1170.12,
subds. (a)-(d) & 667, subds. (b)-(i).) On December 16, 1998, following the denial of
defendant’s motion to strike his prior strike convictions, the court sentenced him to state
prison for 25 years to life.
On July 22, 2013, defendant filed an in pro. per. petition for writ of habeas corpus,
requesting that he be resentenced under section 1170.126. The court deemed the writ to
be a petition for recall of sentence. The court denied the petition since defendant’s
current conviction was for a serious offense, which made him ineligible for resentencing
under section 1170.126. (§ 1170.126, subd. (e)(1).)
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2
We note that the appealability of the denial of a section 1170.126 petition is
currently being considered by the Supreme Court. (See, e.g., Teal v. Superior Court
(2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708 [court held it was
not appealable]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31,
2013, S212017 [court held it was appealable].) Even if we were to conclude it was a
nonappealable order, we could, in the interest of judicial economy and because of
uncertainty in the law, treat defendant’s appeal as a petition for writ of habeas corpus or
petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4
[treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v.
Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating
appeal as petition for writ of mandate due to uncertainty in the law].) In any event, we
will review defendant’s appeal.
2
ANALYSIS
After the notice of appeal was filed, this court appointed counsel to represent
defendant. 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, a brief statement of the facts, and identifying
one potential arguable issue: whether the trial court erred in denying defendant’s petition
for resentencing under section 1170.126.
Defendant was offered an opportunity to file a personal supplemental brief, which
he has not done. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an
independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
KING
J.
3
People v. Long CA4/2
Combined Opinion