Filed 6/2/15 P. v. Williams CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B261615
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA043629)
v.
STEVEN WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Susan M. Speer, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Defendant and appellant Steven Williams appeals from the denial of his petition
for recall of sentence under Proposition 36, the Three Strikes Reform Act of 2012
(Pen. Code, §1170.126).1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, Williams was convicted of arson of an inhabited structure (§ 451,
subd. (b)). Because Williams had two prior serious or violent felony convictions, he was
sentenced under the “Three Strikes” law to 35 years to life in prison.2
On September 5, 2014, Williams filed a petition for recall of sentence seeking
relief under Proposition 36. In addition to requesting resentencing, he argued that his
“current sentence was enhanced” due to his “priors from a prior plea agreement.”
Because those priors occurred before the enactment of the Three Strikes law, he would
not have entered into the plea had he known the priors could be used to enhance his
current sentence. He also contended that his sentence violated the ex post facto clauses
of the United States and California Constitutions and violated People v. Vargas (2014)
59 Cal.4th 635, which held that two prior convictions arising out of a single criminal act
cannot constitute two strikes.
The trial court appointed counsel to represent Williams. Williams filed a
Marsden3 motion, but the record does not show it was ruled on.
On January 5, 2015, the trial court denied the petition with prejudice, finding
Williams ineligible for resentencing because his current conviction for arson is a serious
felony (§ 1192.7, subd. (c)(14)). The court dismissed without prejudice Williams’s
contention under People v. Vargas, supra, 59 Cal.4th 635, and instructed him to submit it
in a separate petition for writ of habeas corpus.
1
All further undesignated statutory references are to the Penal Code.
2
We affirmed his conviction in People v. Williams (Sept. 29, 2008, B198413,
B201346) [nonpub. opn.].
3
People v. Marsden (1970) 2 Cal.3d 118.
2
DISCUSSION
After review of the record, appellant’s court-appointed counsel filed an opening
brief which raised no issues and which asked this court to conduct an independent review
of the record, under People v. Wende (1979) 25 Cal.3d 436, 441. By letter dated
March 19, 2015, we advised appellant that he had 30 days to submit by brief or letter any
contentions or argument he wished this court to consider. Williams submitted an
untimely letter brief, which we allowed him to file on May 1, 2015.
Williams’s letter brief raises the same argument made in the trial court; namely,
“the use of prior plea bargains, that occurred prior to the enactment of the Three Strikes
law” cannot “be utilized as strikes.” He also appears to argue that, under Descamps v.
United States (2013) 570 U.S. __ [133 S.Ct. 2276] (Descamps), he was entitled to a jury
trial on the issue of whether his conviction was serious or violent.
A contention under Descamps was neither raised in the petition for recall nor
considered by the trial court. In any event, Descamps held that a finding under the
federal Armed Career Criminal Act that a prior conviction was for “a violent felony” may
not be based on facts underlying the prior conviction when the elements of the prior
conviction were broader than the elements of that crime as generically or commonly
understood. (Descamps, supra, 133 S.Ct. at pp. 2281-2282; see also People v. Wilson
(2013) 219 Cal.App.4th 500, 515.) Descamps has thus been interpreted as calling into
question the scope of the prior conviction exception, stated in Apprendi v. New Jersey
(2000) 530 U.S. 466. (Wilson, at pp. 515-516.) But, while Descamps may affect
sentence enhancing provisions, it does not affect an ameliorative provision such as
section 1170.126, which can only decrease a defendant’s sentence. (People v. Manning
(2014) 226 Cal.App.4th 1133, 1141, fn. 3; see also People v. Superior Court (Kaulick)
(2013) 215 Cal.App.4th 1279, 1304-1305.)4
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To the extent Williams relies on Descamps to argue he was entitled to a jury trial
on whether his prior convictions were serious or violent felonies for the purposes of the
Three Strikes law, that issue was not the proper subject of a petition for recall of
sentence. Nothing in this opinion precludes Williams from raising that issue in an
appropriate manner.
3
Under section 1170.126, subdivision (e)(1), an inmate is eligible for resentencing
if he is serving a term 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.” Williams’s current conviction for arson is a serious felony. (§ 1192.7,
subd. (c)(14).) He is therefore ineligible for resentencing under Proposition 36.
Williams also could be sentenced as a third striker, even if the prior convictions on
which his third strike sentence was based, predated enactment of the Three Strikes law.
(See Doe v. Harris (2013) 57 Cal.4th 64, 73-74 [“as a general rule” “requiring the
parties’ compliance with changes in the law made retroactive to them does not violate the
terms of the plea agreement, nor does the failure of a plea agreement to reference the
possibility the law might change translate into an implied promise the defendant will be
unaffected by a change in the statutory consequences attending his or her conviction”];
People v. Gipson (2004) 117 Cal.App.4th 1065 [applying a retroactive change in
recidivism sentencing under the Three Strikes law even though the defendant’s plea
agreement was under prior law].)
Finally, utilizing prior convictions to sentence under the Three Strikes law does
not violate due process and ex post facto considerations. (See, e.g., People v. Gray
(1998) 66 Cal.App.4th 973, 995; People v. Brady (1995) 34 Cal.App.4th 65, 71-72.)
Williams was not precluded from raising any claim under People v. Vargas, supra,
59 Cal.4th 635; the trial court instead instructed him to file a petition for habeas corpus.
We have examined the record and are satisfied appellate attorney has fully
complied with the responsibilities of counsel and no arguable issue exists. (People v.
Kelly (2006) 40 Cal.4th 106, 126; People v. Wende, supra, 25 Cal.3d at p. 441.)
4
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
KITCHING, J.
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