Filed 5/3/16 P. v. Jordan CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B269674
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA281783 )
v.
DONALD A. JORDAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, William
C. Ryan, Judge. Affirmed.
Richard Lennon, , under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________
In 2006, defendant and appellant Donald Alan Jordan was convicted of four
counts of committing a lewd act on a child 14 or 15 years of age by a person 10 or more
years older than the victim. (Pen. Code § 288, subdivision (c)(1).)1 Defendant was also
convicted of procuring a child for a lewd act. (§ 266j.) Defendant’s 8-year sentence was
doubled to 16 years due to his prior conviction of murder, which was a qualifying
conviction under the three strikes law. (§§ 1170.12, subds. (a)-(d) and 667, subds. (b)-
(i).)
On September 15, 2015, defendant filed a petition to recall his sentence pursuant
to section 1170.126, enacted by the November 2012 passage of the Three Strikes Reform
Act of 2012 (Proposition 36). Defendant alleged Proposition 36 applied to him as a
second strike offender, and further alleged his jury trial waiver on the substantive charges
against him did not embrace a jury waiver as to the strike prior conviction allegation.
On September 24, 2015, the superior court denied the petition on two grounds.
First, the court ruled the petition was untimely. The effective date of Proposition 36 is
November 7, 2012, and section 1170.126, subdivision (b), establishes a two-year filing
deadline for relief. Defendant’s filing on September 24, 2015, was untimely and good
cause was not stated for the late filing. Second, the court ruled that defendant’s claim
regarding a jury trial waiver was not cognizable in a petition to recall a sentence under
Proposition 36.
Defendant filed a timely notice of appeal from the order denying his petition.
This court appointed counsel to represent defendant on appeal. On March 25, 2016,
appointed counsel filed a brief raising no issues, asking this court to independently
review the record for trial errors under People v. Wende (1979) 25 Cal.3d 436.
Defendant was advised of his right to file a supplemental brief within thirty days. On
April 28, 2016, defendant filed a supplemental brief arguing that his sentence must be
vacated because the finding that his prior conviction was a strike was improper under
1 Statutory references are to the Penal Code unless otherwise indicated.
2
Johnson v. United States (2015) __ U.S. __, 135 S.Ct. 2551 (Johnson) [holding a portion
of the Armed Career Criminal Act of 1984 void for vagueness].)
We have completed our independent review of the record and conclude the
superior court did not commit error in denying the petition. The petition was untimely as
a matter of law, and no good cause for delay has been shown. (§ 1170.126, subd. (b).)
On its face, section 1170.126 applies to “persons presently serving an indeterminate term
of imprisonment” under the three strikes law. (Id. at subd. (a)). Defendant is serving a
determinate term of 16 years, and therefore section 1170.126 has no application to his
sentence. Nothing in the language of Proposition 36 suggests that a section 1170.126
petition may be used to challenge purported trial error. The basis for defendant’s claim
on appeal is unclear, as Johnson involved a discussion of a portion of a federal statute not
implicated in defendant’s case. In any event, defendant presents no record to establish
that his prior conviction was improperly litigated at trial.
The order denying the petition is affirmed. (Smith v. Robbins (2000) 528 U.S.
259.)
KRIEGLER, J.
We concur:
TURNER, P.J.
RAPHAEL, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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