Filed 2/17/16 P. v. Jenkins CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A143694
v.
LOUIS JENKINS, (San Mateo County
Super. Ct. No. SC37642)
Defendant and Appellant.
Louis Jenkins appeals from a postjudgment order denying his motion for
resentencing under Penal Code section 1170.126. His attorney has filed a brief seeking
our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende) (see Anders v. California (1967) 386 U.S. 738), in order to determine whether
there is any arguable issue on appeal. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL HISTORY
In 1996, a jury found Jenkins guilty of one count of first degree residential
burglary and one count of second degree commercial burglary. (Pen. Code, §§ 459, 460.)1
Jenkins waived a jury trial on his alleged prior convictions and the court found
true the allegations of two prior strike convictions (§ 1170.12, subd. (c)(2)), two prior
serious felony convictions (§ 667, subd. (a)), and a prior prison term (§ 667.5, subd. (b)).
The court sentenced Jenkins to state prison for a term of 35 years to life on the residential
burglary count (25 years to life plus two consecutive five-year enhancements under
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All further undesignated statutory references are to the Penal Code.
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section 667, subdivision (a)), and imposed a concurrent two-year term on the commercial
burglary count.
Jenkins appealed (appeal No. A074789). In 1998, the Court of Appeal affirmed
the judgment.
In April 2014, while represented by legal counsel, Jenkins filed a petition for
resentencing under section 1170.126, pursuant to the Three Strikes Reform Act of 2012
(Proposition 36, approved by voters on November 6, 2012).
The People opposed the petition, arguing that Jenkins was statutorily ineligible
because the conviction for which he received his indeterminate life sentence—residential
burglary—is a serious felony within the meaning of section 1192.7, subdivision (c). (See
§ 1170.126, subd. (e)(1).) Alternatively, the People argued, Jenkins’s criminal history
and misconduct in prison established that resentencing would pose an unreasonable risk
of danger to public safety, and on that basis the court should exercise its discretion not to
resentence. (See § 1170.126, subds. (f) & (g).)
The court denied Jenkins’s petition in November 2014.
This appeal followed.
II. DISCUSSION
Jenkins’s appellate counsel represents in the opening brief in this appeal that
counsel wrote to Jenkins and advised him of the filing of a Wende brief and his
opportunity to file a supplemental brief with the court within 30 days after the filing of
the Wende brief.
On September 30, 2015, Jenkins filed a supplemental brief, which stated:
“Petitioner Jenkins motions the Court for ‘Supplemental Brief,’ in the above entitled
case, pursuant (‘THREE STRIKES REFORM ACT OF 2012’) that he meets, and the
state violates the following: [¶] Article 1 section 7(a) Due process of law states: [A]
person may not be deprived of life, liberty, or property without due process of law or
denied equal protection of the law. [¶] Article 1 section 7(b) Privileges and Immunities
states: A citizen or class of citizens may not be granted privileges or immunities not
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granted on the same terms to all citizens (note) [P]rivileges or immunities granted by the
legislature may be altered or revoked (note) [T]he people [v]oted[.] Prop 36 is not the
legislature. [¶] The California Constitution is being violated by denying petitioner equal
protection and Due Process by [sic] ineligible for resentencing based on petitioner[’]s
after the fact of petitioner having it and granting other 3 Strikers to be resentence[d] and
not petitioner, based on after the fact of petitioner[’]s prior (also) violates the U.S.
Constitution[’]s 4th, 5th, 6th, 13th, and 14th Amendments based on same facts as the
California Constitution. [¶] The 3 Strike Reform Act of 2012[] violated the California
Constitution by granting a citizen or class of citizen a privilege[] of being resentencing
not as a 3 Strike, but a second strike and imm[u]nities from 3 Strike sentencing, but it[’]s
not granted to the same terms all citizens based on a citizen being ineligible due to his
prior after the fact prior. [¶] Article (4) section (a) states: A statute shall embrace but
one subject, which shall be expressed in its title, if a statute embraces a subject not
expressed in its title, only the part not expressed is void. [¶] The 3 Strike [R]eform [A]ct
of 2012 states: imposing life sentence for dangerous criminal[s] like[] (1) rapists
(2) murder[er]s and (3) child molesters. The petitioner is not a rapist[], murder[er] or
child molester. [¶] The 3 Strike [R]eform [A]ct of 2012[] does not have in its heading
violent or serious crime, only rapists, murder[er]s and child molesters. [¶] (Note) Serious
and violent, none serious none violent still was sentence[d] to a 25 year to life sentence,
now you[’re] giv[ing] them a privilege[] of being a [two-]striker and immunities from
3 Strike sentence and telling petitioner he’s ineligible. [¶] (Note) Also SEE 3 Strike
[Reform Act] of 2012[] heading: The people enact the Three Strikes Reform Act of 2012
to restore the original intent of California’s Three Strikes law—imposing life sentences
for dangerous criminals like rapists, murder[er]s and child molesters. [¶] For the above
reasons and more petitioner Jenkins motions the Court for ‘Supplemental Brief.’ ”
Jenkins has not established that the court erred in denying his petition for
resentencing pursuant to section 1170.126. That section generally limits a third-strike
indeterminate life sentence to those whose current offense is a “serious” or “violent”
felony, as defined in sections 1192.7, subdivision (c) and 667.5, subdivision (c).
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(§ 1170.126, subd. (b).) It also permits inmates serving an indeterminate life sentence to
petition the superior court for resentencing if the inmate would not have received an
indeterminate life sentence under the terms of the section. (§ 1170.126, subds. (a) & (b).)
Here, Jenkins received an indeterminate life sentence on his conviction for residential
burglary (§ 459), which is burglary of the first degree (§ 460), which is a serious felony
under section 1192.7, subdivision (c)(18). He is not eligible for resentencing.
(§ 1170.126, subd. (e)(1).) Nor has he established a constitutional violation.
We find no arguable issues on appeal.
There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.
(A143694)
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