People v. Gordon CA1/1

Filed 2/28/14 P. v. Gordon CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A138805 v. WILLIAM GORDON, (San Mateo County Super. Ct. No. SC035737) Defendant and Appellant.

In this case, defendant, William Gordon, pled guilty to one count of robbery and admitted the firearm use enhancement attached to the count. He did this in 1996. He also admitted three prior convictions as strike priors. Pursuant to the agreement, the remaining counts and enhancements were dismissed and he was sentenced to state prison for a term of 30 years. On March 12, 2013, defendant filed a form petition for recall of sentence pursuant to Penal Code section 1170.126 (Proposition 36).1 Defendant obtained appointed counsel. He then filed a motion for recall and resentencing under section 1170.126. The new motion conceded defendant was ineligible for relief under Proposition 36 because the third strike was a robbery conviction. Yet, defendant argued a categorical denial of relief under the statute amounted to a denial of equal protection under the federal and California Constitutions.

1 All further statutory references are to the Penal Code unless otherwise indicated.

1

On May 17, 2013, the court after a hearing denied the motion. This appeal was then timely filed. Appellate counsel for defendant has made an independent review of the trial court proceedings. He has concluded no meritorious claims are presented for appeal. He has advised defendant of this conclusion and told Gordon he may file a supplemental pleading raising issues he believes merit appellate review. We have received a supplemental letter from defendant indicating his assessment of the matter. This letter was received on November 19, 2013. In it, Gordon acknowledges his past failures and indicates he has reassessed the need to become a more responsible member of society. To attain this goal, defendant plans on attending academic classes and counseling to provide better control over his life plans. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 119 and People v. Wende (1979) 25 Cal.3d 436, counsel has asked us to conduct an independent review of the record. We have done this review and find no issues meriting further appellate consideration. STATEMENT OF THE CASE An information was filed on January 20, 1995 in San Mateo Superior Court charging defendant with three counts of robbery (§ 212.5) and firearm use allegations (§ 12022.5, subd. (a)), one count of attempted robbery with a firearm use, and two counts of aggravated assault (§ 245, subd. (a)), vehicle theft (Veh. Code, § 10851, subd. (a)), resisting arrest (Pen. Code, § 148) providing false identification (§ 148.9, subd. (b), evading a police officer (Veh. Code, § 2800.3) and escape from jail (Pen. Code, § 4532, subd. (b)). The information alleged two prior robbery convictions and one prior attempted robbery conviction, all within the meaning of the three strikes law, as well as section 667, subdivision (a) and section 667.5, subdivision (b). In a plea agreement, defendant pled guilty to one count of robbery and admitted the use of a firearm enhancement for that count. He also acknowledged three prior strike