People v. Green CA1/4

Filed 6/30/15 P. v. Green CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, A141549 v. CEDRIC TYRONE GREEN, (San Mateo County Super. Ct. No. SC041613A) Defendant and Appellant.

This case comes to us under People v. Wende (1979) 25 Cal.3d 436 after defendant Cedric Tyrone Green, who is serving a third strike indeterminate life term, petitioned for recall of his sentence and for resentencing under the Three Strikes Reform Act of 2012. He was found ineligible, and appealed. Having conducted a full-record review, we find no issues that merit briefing. We also address certain issues raised by Green on his own behalf. We find no error warranting further consideration on our own or in anything Green has raised. We therefore affirm. BACKGROUND Green was convicted by jury verdict of second degree robbery (Pen. Code,1 §§ 211, 212.5) in 1998, with two strike priors for attempted robbery from 1991 and 1993 (§§ 211, 212.5, 664, 667, subds. (b)-(j)), which also qualified as serious felony priors under section 667, subdivision (a). He was sentenced to 35 years to life in prison and has been incarcerated ever since. (§§ 667, subds. (a), (e), 1170.12, subd. (c)(2)(A)(ii).)

1 Statutory references are to the Penal Code.

1

Represented by counsel in the trial court, Green filed a petition to recall his sentence and for resentencing pursuant to section 1170.126. That statute permits inmates who were sentenced to a third-strike term for a relatively minor offense (non-violent and non-serious) to be resentenced in certain circumstances. Generally, it allows third- strikers who were sentenced to a third-strike term (indeterminate term of 25 years to life) to instead be given a second-strike sentence (double the base term). (§§ 667, subds. (e)(1), (e)(2)(C), 1170.126, subds. (a) [resentencing applies “exclusively to persons presently serving an indeterminate term of imprisonment . . . , whose sentence under this act would not have been an indeterminate life sentence”] & (b).) Green’s trial counsel seemed to recognize that his client was ineligible for resentencing under section 1180.126 because the commitment offense (the 1998 robbery) was a violent and serious felony (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19).) Nevertheless, in an apparent effort to secure a less onerous sentence, trial counsel requested the court to consider striking one of the prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court ruled that Green was statutorily ineligible for resentencing under section 1170.126 and denied the petition. It did not directly address the Romero request. Green filed a timely notice of appeal. (Teal v. Superior Court (2014) 60 Cal.4th 595, 598–601 [denial of petition for resentencing is appealable order].) On December 1, 2014, Green’s appointed appellate counsel, a staff attorney at the First District Appellate Project (FDAP), filed a brief under People v. Wende, supra, 25 Cal.3d 436, requesting that we review the entire record to determine if there are any arguable issues to be briefed. Counsel notified Green of her intention to file a Wende brief and advised him of his right to file a supplemental brief on his own behalf within 30 days. On December 29, 2014, Green’s appellate counsel filed a request for an extension of time for Green to file a supplemental brief. We granted the extension. Within the time allowed, Green did not file a supplemental brief on the merits, but he did file (1) a motion to dismiss the Wende brief and request for leave to “amend appellant’s brief, presenting