Filed 8/19/14 P. v. Dawson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, E060590
v. (Super.Ct.No. FSB08119)
GLEN ERVIN DAWSON, 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.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Glen Ervin Dawson appeals after the trial court denied
his petition for resentencing under Penal Code section 1170.126, known as the Three
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Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,
2012)).1 A notice of appeal was filed on defendant’s behalf on February 5, 2014.2 We
affirm.
PROCEDURAL BACKGROUND
On June 12, 1996, pursuant to a plea agreement, defendant pled guilty to one
count of attempted murder (§§ 664/187, subd. (a)) and admitted that he used a knife in
the commission of the offense. (Former § 12022, subd. (b).) The parties agreed to a
court trial on the prior strike convictions. A trial court found that he had two prior strike
convictions (§§ 1170.12, subd. (a)-(d) & 667, subd. (b)-(i)) and that he was convicted of a
serious prior felony (§ 667, subd. (a)(1)). The court also denied defendant’s motion to
strike the prior convictions. The court sentenced defendant pursuant to section 667,
subdivision (e)(2), to a total state prison term of 33 years to life.
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 treat, in the interest of judicial economy and because of
uncertainty in the law, 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
On November 5, 2013, defendant filed an in propria persona petition for recall of
sentence under section 1170.126. 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).)
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 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 done. In a handwritten supplemental brief, defendant claims that: (1) he had a
right to invite the court hearing his resentencing petition to strike a prior strike conviction
pursuant to section 1385, subdivision (a); and (2) such court had the discretion to strike
one or more of his prior strikes. However, defendant did not raise these issues in his
petition for recall of sentence. Thus, he has waived them on appeal. (People v. Burgener
(2003) 29 Cal.4th 833, 869.) In any event, the record reflects that defendant previously
filed a motion to strike his prior convictions, and the trial court denied it.
Defendant also claims that he had a statutory and constitutional right to be present
at the Proposition 36 eligibility hearing, since it was “a critical stage” of the sentencing
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process. In support of his position, he cites section 1193, subdivision (a). Section 1193,
subdivision (a), provides that a defendant shall be personally present “when judgment is
pronounced against him . . . .” (Italics added.) However, judgment was pronounced in
1996, and defendant was present at that hearing. Moreover, the current hearing was held
only to determine his eligibility for resentencing.
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.
RICHLI
J.
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