People v. Walcott CA2/4

Filed 8/17/15 P. v. Walcott CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B261304

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA026984) v.

DARRYL ALLEN WALCOTT,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Frank J. Johnson, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, and Darryl Allen Walcott, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Appellant Darryl Allen Walcott appeals from the denial of his petition to recall his 1 sentence under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126). His appointed counsel filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436), and appellant filed a supplemental brief in propria persona. We have reviewed the record under People v. Kelly (2006) 40 Cal.4th 106. It shows that in 1997, appellant was convicted by a jury of second degree robbery. (§ 211, subd. (a).) The jury also found true the allegation of use of a handgun. (§ 12022.5.) The trial court found appellant had suffered six prior convictions for robbery and one for attempted robbery, and sentenced him to 44 years to life. The conviction was affirmed in People v. Walcott (June 16, 1999, B121073 [nonpub opn.]). On June 13, 2014, appellant filed a petition to recall his sentence pursuant to section 1170.126. The court denied the petition because appellant’s current felony falls under section 667.5, subdivision (c)(9), rendering him ineligible for resentencing. Appellant’s petition was properly denied. The resentencing provision of the Three Strikes Reform Act is reserved for those serving indeterminate life sentences for convictions “that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (b).) Appellant’s current felony conviction, robbery, falls under the category of a “‘violent felony’” as defined by section 667.5, subdivision (c)(9). Appellant’s supplemental brief raises issues unrelated to the denial of his petition to recall his sentence. He contends that, during trial proceedings, the trial court ordered a competency hearing but that hearing was never held. He argues that (1) once the trial court ordered a competency hearing, it lacked jurisdiction to conduct further proceedings until the hearing took place; and (2) appellant’s counsel, during the direct appeal, rendered ineffective assistance by failing to challenge the court’s failure to hold a competency hearing. Appellant has filed several petitions for writ of habeas corpus raising these issues, all of which have been considered and denied. Appellant also argues