Filed 4/8/14 P. v. Evans CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E059530
v. (Super.Ct.No. RIF126497)
COURAGE BALLANT EVANS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Courage Ballant Evans 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
BACKGROUND
In 2006, defendant was convicted by a jury of six counts of burglary (§ 459;
counts 1-6) and two related counts of petty theft with a prior (§ 666; counts 7-8). In a
bifurcated proceeding, the trial court found true that defendant had suffered two prior
prison terms within the meaning of section 667.5, subdivision (b), and five prior strike
convictions within the meaning of sections 667, subdivisions (c) and (e)(2)(A), and
1170.12, subdivision (c)(2)(A). Defendant’s prior strike convictions all occurred in 1994,
and included two counts of kidnapping (§ 207); one count of attempted second degree
murder (§§ 664/187); and two counts of carjacking (§ 215, subd. (a)). As a result of the
jury’s verdict and the prior offenses, on August 18, 2006, defendant was sentenced to a
total indeterminate term of 27 years to life in state prison.
On November 6, 2012, the electorate passed Proposition 36, also known as the
Three Strikes Reform Act (the 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
1 All future statutory references are to the Penal Code unless otherwise stated.
2
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 life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or
subdivision (c) of 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 [s]ection 667.5 or
subdivision (c) of [s]ection 1192.7.” (§ 1170.126, subd. (e)(1).)
On November 13, 2012, defendant filed a petition for resentencing under section
1170.126. The trial court denied the petition on January 25, 2013, finding defendant
ineligible for resentencing under section 1170.126 due to his prior conviction for
attempted second degree murder.
Defendant filed a notice of appeal on June 24, 2013.2 On September 4, 2013, this
court deemed the notice of appeal timely filed.
2 We note that the California Supreme Court has granted review in cases that have
found that the trial court’s order on a postjudgment petition pursuant to section 1170.126
is a nonappealable order (see, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308,
review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941,
review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2),
Cal. Rules of Court). We also note that recently the Supreme Court granted review in a
case where the appellate court found the petition to be appealable. (See, e.g., People v.
Leggett (2013) 219 Cal.App.4th 846, 854, review granted Dec. 18, 2013, S214264.)
Even if we were to conclude it was a nonappealable order, we could consider, in the
interest of judicial economy and because of uncertainty in the law, that defendant’s
appeal is a petition for writ of habeas corpus or petition for writ of mandate. (See People
[footnote continued on next page]
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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. The only conceivable appellate issue in an appeal from
a denial of a petition pursuant to section 1170.126 is the applicability of section 1170.126
to defendant.
Proposition 36 also added section 1170.126, which applies exclusively to
those “persons presently serving an indeterminate term of imprisonment pursuant to
paragraph (2) of subdivision (e) of [s]ection 667 or paragraph (2) of subdivision (c) of
[s]ection 1170.12, whose sentence under this act would not have been an indeterminate
life sentence.” (§ 1170.126, subd. (a).) Section 1170.126 sets forth a procedure through
which certain prisoners can petition the court for resentencing. Such a person may file a
petition to recall his or her sentence and be sentenced as a second strike offender.
(§ 1170.126, subd. (b).) An inmate is eligible for such resentencing if none of his or her
commitment offenses constitute serious or violent felonies and none of the enumerated
[footnote continued from previous page]
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,
853 [Fourth Dist., Div. Two] [treating appeal as petition for writ of mandate due to
uncertainty in the law].)
4
factors disqualifying a defendant for resentencing under Proposition 36 apply.
(§ 1170.126, subd. (e).)
Section 1170.126, subdivision (e)(3), provides that an inmate is eligible for
resentencing if “[t]he inmate has no prior convictions for any of the offenses appearing
in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of [s]ection 667 or
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of [s]ection 1170.12.”
Defendant here has a prior conviction for attempted second degree murder, which is
an offense listed in sections 667, subdivision (e)(C)(iv)(IV), and 1170.12,
subdivision (c)(C)(iv)(IV). Defendant pled guilty to the attempted murder offense, as
well as the two counts of carjacking and two counts of kidnapping, in 1994. Defendant
was therefore ineligible for resentencing under section 1170.126.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. Defendant raises issues relating to his 1994 plea of guilty to the attempted
second degree murder, carjacking, and kidnapping charges. He claims that the plea was
not entered into knowingly or voluntarily and that he was pressured into pleading guilty
by his then attorney. Defendant’s arguments do not pertain to the petition to recall his
sentence under section 1170.126, and thus are not within the scope of an appeal from the
ruling on that petition. Thus, defendant’s claims are not an arguable issue on appeal.3
3Defendant had previously filed an appeal in case No. E041256 following his
2006 conviction and sentence, and failed to raise any issues relating to his 1994 plea.
(See People v. Evans (March 13, 2008, E041256) [nonpub. opn.].)
5
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.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.
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