People v. Holloway CA2/1

Filed 1/7/14 P. v. Holloway CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B248989

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA031000) v.

PERVIS HOLLOWAY,

Defendant and Appellant.

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

Pervis Holloway appeals from an order denying his motion to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36. (Pen. Code, § 1170.126.)1 His appointed counsel filed a Wende brief raising no issues and asking this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436, 441.) On October 18, 2013, we sent letters to appellant and appointed counsel, directing counsel to immediately forward the appellate record and a copy of the Wende brief to appellant and advising him that he had 30 days within which to personally submit any contentions or issues he wished us to consider. To date, appellant has not responded. In 1999, appellant was resentenced for a conviction of possession of firearm by a felon under section 12021, subdivision (a)(1), having originally been sentenced in 1995. Because appellant had two prior serious convictions, he was sentenced to an indeterminate life term under the “Three Strikes” law. (§§ 667, 1170.12.) In November 2012, the voters of this state enacted Proposition 36, which amended the Three Strikes law to limit sentences to current convictions for serious or violent felonies and a limited number of other felonies, unless the offender has a prior strike conviction that falls within one of several enumerated categories. (§§ 667, 1170.12.) The amended Three Strikes law establishes a procedure for qualified inmates serving indeterminate life sentences under the Three Strikes law to seek resentencing under the terms of the amended law. (§ 1170.126.) On January 8, 2013, appellant petitioned for relief under this provision, seeking recall of his sentence and resentencing to a determinate term sentence. In his petition, appellant argued that his current sentence is not for one of the offenses listed in sections 667 or 1170.12 and is neither serious nor violent. He also argued that his prior convictions, while for sex offenses, do not fall within the enumerated category of “‘sexually violent offense’ as defined by subdivision (b) of Section 6600 of the Welfare and Institutions” Code because the Welfare and Institutions Code applies solely to juvenile court law and minor victims, and appellant’s victim was 31 years old and