People v. Jones CA2/4

Filed 12/9/13 P. v. Jones CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B248277

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA012309) v.

MARLIN JONES, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Dee Hayashi, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Marlin Jones, Jr., appeals from an order denying his motion to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36 (the Reform Act). (Pen. Code, § 1170.126).1 His appointed counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) Appellant filed a supplemental brief. In 1997, appellant was convicted of first degree burglary (§ 459), forgery (§ 470), intimidation or dissuading a witness (§ 136.1, subd. (c)(1)), and grand theft of a firearm (§ 487, subd. (d)). Two prior serious or violent felonies and a prior prison term were found to be true. Appellant was sentenced to a total of 81 years to life, consisting of three consecutive terms of 25 years to life on the burglary, forgery, and dissuading a witness counts. On the burglary count, the court also imposed one year for the prior prison term enhancement (§ 667.5) and five years for the serious felony enhancement (§ 667, subd. (a)). A 25-years-to-life sentence for grand theft of a firearm was stayed. We affirmed. (People v. Jones (1998) 67 Cal.App.4th 724.) On February 28, 2013, appellant filed a motion for resentencing under sections 1170.126, 667, subdivision (f)(2), 1385, and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied the motion with prejudice because appellant was convicted of burglary, a violent felony under section 667.5, subdivision (c)(21), and therefore was ineligible for resentencing under section 1170.126. Section 1170.126 applies to a person serving an indeterminate life sentence imposed upon conviction of a felony or felonies not defined as serious or violent for purposes of the Three Strikes law; such a person may petition for a recall of sentence and request resentencing. (See § 1170.126, subd. (a) & (b).) Resentencing depends on meeting additional eligibility criteria and on the court’s discretionary determination that it “would not pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (e) & (f).) Courts of Appeal are split on the issue whether a person who is ineligible for resentencing under section 1170.126 may appeal from an order denying a petition to