Filed 4/26/21 P. v. Roe CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306386
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA312218-02)
v.
RUPERT MILA ROE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Richard S. Kemalyan, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________
Rupert Mila Roe purports to appeal from an order denying
his petition for writ of habeas corpus, a nonappealable order.
(Robinson v. Lewis (2020) 9 Cal.5th 883, 895; In re Clark (1993)
5 Cal.4th 750, 767, fn. 7; Cox v. Superior Court (2016)
1 Cal.App.5th 855, 858.) Accordingly, Roe’s appeal must be
dismissed.
Even were we to deem this matter an appeal from a
nonstatutory motion for modification of sentence in the superior
court or a new petition for a writ of habeas corpus in this court,
Roe’s contention his 2007 sentence as a third strike offender
should be modified in light of recently enacted Penal Code
section 1016.81 is devoid of merit.
FACTUAL AND PROCEDURAL BACKGROUND
Roe was convicted by a jury in 2007 of two counts of
kidnapping (§ 207, subd. (a)). In a bifurcated proceeding the trial
court found true the allegations Roe had suffered two prior
serious felony convictions within the meaning of the three strikes
law (§§ 667, (b)-(j), 1170.12) and sentenced Roe to consecutive
indeterminate state prison terms of 25 years to life. We affirmed
the judgment. (People v. Roe (Jan. 13, 2009, B201370) [nonpub.
opn.].)
On March 5, 2020 Roe, representing himself, filed a
petition for writ of habeas corpus alleging his two prior strike
convictions were the product of negotiated plea agreements in the
State of Washington in 1992, prior to the 1994 enactment of
California’s three strikes law. Citing Assembly Bill No. 1618
(2019-2020 Reg. Sess.) (Assembly Bill 1618), which, effective
January 1, 2020, added section 1016.8 to the Penal Code,
1 Statutory references are to this code.
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providing, in part, that future beneficial changes in sentencing
laws cannot be denied to a person who pleads guilty, Roe argued
his prior serious felony convictions could not be used as prior
strikes because he had not been warned about potential
three strikes law consequences at the time of his pleas.
On May 1, 2020 the superior court denied Roe’s petition,
ruling section 1016.8 did not apply to Roe. The court explained
Roe’s conviction in Los Angeles Superior Court followed a jury
trial, not a plea agreement, and nothing in the petition indicated
Roe had waived any future benefits when entering into plea
agreements in the State of Washington.
Roe filed a notice of appeal on June 10, 2020.
DISCUSSION
Section 1016.8 codified the Supreme Court’s decision in
Doe v. Harris (2013) 57 Cal.4th 64, which held the fact the
parties have entered into a plea agreement does not insulate
them from future changes in the law intended to have retroactive
effect. (See People v. Stamps (2020) 9 Cal.5th 685, 704-705.)
Section 1016.8 also “clarified that any ‘provision of a plea bargain
that requires a defendant to generally waive future benefits of
legislative enactments, initiatives, appellate decisions, or other
changes in the law that may retroactively apply after the date of
the plea is void as against public policy’ (§ 1016.8, subd. (b)).”
(Stamps, at p. 705.) A plea bargain requiring such a waiver is
deemed not knowing and intelligent. (§ 1016.8, subd. (a)(4).)
As the superior court ruled, section 1016.8 has no effect on
Roe’s 2007 sentence. The enactment of the three strikes law after
his earlier guilty pleas in the State of Washington was not an
ameliorative sentencing change that might benefit Roe. And
section 1016.8 does not provide a plea is involuntary when a
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defendant has not been advised of its potential future
consequences. That the three strikes law was enacted after his
pleas does not preclude its application to him. (See § 1016.8,
subd. (a), quoting Doe v. Harris, supra, 57 Cal.4th at p. 66 [“[t]hat
the parties enter into a plea agreement does not have the effect of
insulating them from changes in the law that the Legislature has
intended to apply to them”].)
Although Roe attempts to appeal from a nonappealable
order, in accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed appellate counsel to represent him. After
reviewing the record, appointed counsel filed a brief raising no
issues. Appointed counsel advised Roe on October 13, 2020 he
could within 30 days submit a brief or letter raising any grounds,
contentions or arguments he wanted the court to consider. We
provided a similar notice to Roe.
On November 5, 2020 we received a four-page handwritten
supplemental brief with several pages of attachments in which
Roe argued that his plea agreements in 1992 were involuntary
because he was not warned of possible three strikes consequences
and section 1016.8 should apply to his case.
No cognizable legal issues have been raised by Roe’s
appellate counsel or by Roe or identified in our own independent
review of the record. (See People v. Cole, supra, 52 Cal.App.5th
at pp. 1039-1040, review granted; see also People v. Serrano
(2012) 211 Cal.App.4th 496, 503; see generally People v. Kelly
(2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d
436, 441-442.)
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DISPOSITION
The appeal is dismissed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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