People v. Pulido CA2/2

Filed 11/8/13 P. v. Pulido CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B247715

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA026301) v.

VICTOR PULIDO,

Defendant and Appellant.

THE COURT:* Defendant Victor Pulido appeals following the February 26, 2013 denial of his petition to recall his sentence under Penal Code section 1170.126.1 Defendant is currently serving a sentence of 50 years to life plus 10 years. We appointed counsel to represent defendant on this appeal. On June 10, 2013, counsel filed an “opening brief” in which she stated that she had failed to find any arguable issues. On June 11, 2013, we informed defendant that he had 30 days in which to file a supplemental brief containing any issues he wished this

* BOREN, P. J ., CHAVEZ, J., FERNS, J.†

† Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 1 All further references to statutes are to the Penal Code unless otherwise stated.

court to consider. On July 3, 2013, we granted defendant an extension of time. On July 22, 2013, defendant filed a supplemental brief in which he argues that the two strike priors that were used to sentence him as a three-strike defendant constituted a breach of contract. The record shows that, on March 12, 1997, defendant was convicted of six counts of residential burglary. The transcript of defendant’s sentencing hearing reveals that he had been found to have two strikes for two prior convictions of first degree burglary, which were also serious felonies within the meaning of section 667, subdivision (a). The record contains no reporter’s transcript or clerk’s transcript from defendant’s previous trials, plea proceedings, or sentencing proceedings regarding the two strike convictions, which occurred in 1991 and 1993. With respect to the 1997 burglaries, the trial court sentenced defendant to consecutive sentences of 25 years to life on each of two burglary counts and 10 consecutive years for the two enhancements under section 667, subdivision (a). In the remaining four burglary counts, the trial court struck one of defendant’s prior strike convictions and imposed determinate sentences, which were stayed. This court affirmed the judgment on February 13, 1998, in case No. B113344 (unpublished opinion). Defendant cites People v. Jerry Z. (2011) 201 Cal.App.4th 296, review granted March 14, 2012, S199289, for the proposition that deeming his two prior convictions as strikes constituted a breach of contract. Since review has been granted, that case is no longer good law.2 Defendant asserts that at the time of the