Filed 2/18/15 P. v. Shaw 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E062291
v. (Super.Ct.No. RIF099191)
RONALD JAMES SHAW, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.
Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
I
STATEMENT OF THE CASE
On May 6, 2003, following a jury trial, defendant and appellant Ronald James
Shaw was convicted of violating Penal Code1 section 666, petty theft with a prior. The
jury also found true three prison priors and two Three Strike priors. The first strike prior
was a conviction on April 24, 1984, of rape under section 261.2. The second strike prior
was a conviction on March 12, 1993, of robbery under section 211. On February 27,
2004, defendant was sentenced to a total indeterminate term of 25 years to life.
On January 6, 2014, defendant filed an in propria persona petition for resentencing
under section 1170.126. The court denied the petition on January 10, 2014, finding
defendant ineligible because of the prior strike conviction for rape. Defendant then filed
a second in propria persona petition for recall of sentence on September 19, 2014. The
court once again denied the petition based upon the prior strike for his rape conviction.
On November 7, 2014, defendant filed a timely notice of appeal indicating that it
was an appeal from an order finding defendant ineligible for resentencing as a matter of
law under section 1170.126.
1 All statutory references are to the Penal Code unless otherwise specified.
2
II2
ANALYSIS
After defendant appealed, and upon his request, this court 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 setting forth a statement of
the case, a summary of the facts, and potential arguable issues, and requesting this court
to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. On January 30, 2015, defendant filed a five-page handwritten brief. In his
brief, defendant appears to be challenging the constitutionality of section 1170.126 and
his prior guilty plea for rape.
We hereby first address defendant’s challenge to section 1170.126.
In this case, for his conviction of petty theft under section 666, defendant is
serving an indeterminate term of 25 years to life pursuant to section 667, subdivision
(e)(2)(A) for his prior rape conviction. 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 rape,
which is a sexually violent offense as defined in Welfare and Institutions Code section
2 The facts of the underlying case are not relevant. The only issue on appeal
relates to defendant’s sentence. Therefore, a separate statement of facts is not necessary.
3
6600, subdivision (b), as well as offenses listed in sections 667, subdivision (e)(C)(iv)(I),
and 1170.12, subdivision (c)(2)(C)(iv). Defendant is therefore ineligible for resentencing
under section 1170.126.
On appeal, defendant appears to be contending that section 1170.126 violates his
constitutional rights under the double jeopardy clause because the court is allowed to use
his prior strike conviction to find him ineligible for resentencing. Use of the strike
conviction does not offend double jeopardy principles. A three strikes defendant is not
being punished for the old offenses, but rather for the new offense. (See Witte v. United
States (1995) 515 U.S. 389, 400, [132 L.Ed.2d 351, 115 S.Ct. 2199] [“In repeatedly
upholding such recidivism statutes, we have rejected double jeopardy challenges because
the enhanced punishment imposed for the later offense . . . [is] ‘a stiffened penalty for the
latest crime, which is considered to be an aggravated offense because a repetitive
one.’”].) Likewise, the use of the strike conviction to find him ineligible for resentencing
does not raise any double jeopardy concerns since he is not being punished again for the
same crime. Defendant’s constitutional claim is without merit.
Defendant also seems to be arguing that, by excluding defendants who have
committed serious and violent felonies from resentencing under section 1170.126, the
statute violates these defendants’ equal protection rights. “The concept of equal
protection recognizes that persons who are similarly situated with respect to a law’s
legitimate purposes must be treated equally. [Citation.] Accordingly, ‘“[t]he first
prerequisite to a meritorious claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or more similarly situated groups in an
4
unequal manner.’” [Citation.] ‘This initial inquiry is not whether persons are similarly
situated for all purposes, but “whether they are similarly situated for purposes of the law
challenged.”’ [Citation.]” (People v. Brown (2012) 54 Cal.4th 314, 328.)
Section 1170.126 provides a procedural mechanism by which inmates sentenced
under the three strikes law may seek modification of their sentences. Qualifying inmates,
who have not suffered prior serious or violent convictions, may seek such modifications.
Defendant is in a different category. He is among the category of inmates who have
suffered those convictions excluded under section 1170.126. Inmates in defendant’s
category are ineligible to petition for recall of sentence. The Legislature’s definition of
crimes and imposition of different sentences for crimes of differing severity are subject to
rational basis review. (People v. Wilkinson (2004) 33 Cal.4th 821, 837-838.) The effect
of section 1170.126 is rational.
Next, we address defendant’s challenge to his prior guilty plea from 1984. We
note that this appeal pertains to the trial court’s refusal to resentence defendant under
section 1170.126 for his current offense. Defendant is barred from challenging his guilty
plea on a different case from almost thirty years ago on this current appeal.
We have examined the entire record and are satisfied that no arguable issues exist,
and that defendant has, by virtue of counsel’s compliance with the Wende procedure and
our review of the record, received adequate and effective appellate review of the
judgment entered against him in this case. (People v. Kelly (2006) 40 Cal.4th 106.)
5
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
McKINSTER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
6