Filed 10/16/20 P. v. Harris CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304797
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. YA067034)
v.
DARREN LARUE HARRIS,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________________
In 2007, a jury found defendant and appellant Darren
Larue Harris guilty of two counts of making criminal threats
(Pen. Code, § 422 [counts 1 and 2]).1 Defendant was
sentenced to 30 years to life, consisting of concurrent terms
on counts 1 and 2 of 25 years-to-life, pursuant to the three
strikes law (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)),
because he had previously been convicted of five counts of
robbery (§ 211), one count of attempted robbery (§§ 211, 664),
and one count of assault with a firearm (§ 245, subd. (a)(2)),
plus five years for a habitual criminal enhancement (§ 667,
subd. (a)(1)).
In 2014, Harris filed a petition for recall of sentence
pursuant to section 1170.126, enacted in 2012 by the
passage of Proposition 36. The 2014 petition was denied by
the sentencing judge, Mark Arnold, on the grounds that a
violation of section 422 is a serious felony under section
1192.7, subdivision (c)(38), rendering Harris ineligible for
relief under the express terms of section 1170.126,
subdivision (e)(1). Harris appealed, and we dismissed the
appeal in 2015, after Harris declined appointed counsel and
failed to retain private counsel.
On December 5, 2019, Harris filed a second petition for
recall of sentence pursuant to section 1170.126, asserting he
met the criteria under section 1170.126, subdivision (e), and
that a recall of his sentence would not pose an unreasonable
risk of danger to public safety. (§ 1170.126, subd. (f).) On
1 All further statutory references are to the Penal Code
unless otherwise stated.
2
January 17, 2020, Judge William C. Ryan dismissed Harris’s
December 5, 2019 petition, finding it untimely because it
was filed more than two years after section 1170.126 took
effect on November 7, 2012. (§ 1170.126, subd. (f).) Harris
appealed.
We appointed counsel to represent Harris in the
current appeal. After reviewing the record, counsel filed an
opening brief asking this court to review the record
independently pursuant to People v. Wende (1979) 25 Cal.3d
436, 441 (Wende). On June 9, 2020, we advised Harris that
he had 30 days to submit any contentions or issues he
wished us to consider. On June 22, 2020, Harris submitted a
document captioned “Motion for Marden [sic] Hearing and
request for the Attorney General to initiate an FBI
(corruption probe) investigation.” On July 10, 2020, we
granted permission to file the document as a supplemental
brief. Harris’s supplemental brief recounted correspondence
between Harris and the attorney appointed for this appeal,
asserting that the appointed attorney deprived Harris of due
process by wrongfully advising him that his conviction for
violating section 422 (criminal threats) is a serious felony,
and that he was not eligible for resentencing under section
1170.126. Harris’s supplemental briefing did not address
the trial court’s ruling that Harris was no longer eligible for
resentencing at the time he filed his petition, absent a
showing of good cause. (§ 1170.126, subd. (b).)
On August 10, 2020, Harris filed a document captioned
“Amendment to Marsden Hearing Request/Motion,” which
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we will refer to as the Amendment. The Amendment
corrected a citation in Harris’s previous briefing and raised
various arguments under Penal Code section 667,
subdivision (a)(1), that do not overcome the untimely nature
of his resentencing petition.
We have examined the entire record and are satisfied
that Harris’s appointed attorney has fully complied with his
responsibilities and that no arguable issues exist, with
respect to either the merits of the appeal or the Marsden
motion. (Wende, supra, 25 Cal.3d 436.) The trial court’s
order is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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