People v. Talbert CA2/2

Filed 9/22/15 P. v. Talbert CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B260491

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA023457) v.

WILLIAM TALBERT,

Defendant and Appellant.

THE COURT:*

Defendant William Talbert appeals from the order denying with prejudice his petition for recall of sentence under Penal Code section 1170.126.1 Defendant was sentenced to 61 years to life pursuant to section 667, subdivisions (b)-(i) and section 1170.12, subdivisions (a)-(d) (the Three Strikes law). We appointed counsel to represent defendant on this appeal. Counsel filed an “opening brief” in which she stated she had failed to find any arguable issues. On May 27, 2015, we informed defendant he had 30 days in which to file a supplemental

* BOREN, P. J., ASHMANN-GERST, J., HOFFSTADT, J.

1 All further references to statutes are to the Penal Code unless stated otherwise.

brief containing any issues he wished this court to consider. On June 17, 2015, defendant filed a supplemental brief in which he argues that his conviction for second degree robbery, which makes him ineligible for relief under section 1170.126, is in error. On November 21, 1995, defendant was convicted of two counts of petty theft with a prior (§ 666) (counts 1 & 2) and second degree robbery (§ 211) (count 3) after a jury trial.2 The trial court dismissed one count of petty theft with a prior as a lesser included offense of the robbery. Defendant was found to have suffered two serious felony convictions within the meaning of section 667, subdivision (a)(1) and one prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to life in prison with a minimum of 61 years, consisting of consecutive 25-years-to-life sentences in each of counts 1 and 3, two consecutive five-year terms for the prior serious felony convictions, and a consecutive year for the prior prison term enhancement. This court affirmed defendant’s convictions in an unpublished opinion on December 9, 1996, in case No. B099866. On August 18, 2014, defendant filed a petition in pro. per. for recall of sentence pursuant to section 1170.126. On August 22, 2014, the superior court denied with prejudice defendant’s petition on the ground that “[o]ne of defendant’s current convictions is for second degree robbery . . . which is a violent felony pursuant to Penal Code section 667.5, (c)(9), making defendant ineligible for resentencing pursuant to Penal Code section 1170.126, (e)(2).” On November 3, 2014, the public defender filed another petition for recall of sentence on defendant’s behalf, in which he argued for resentencing on defendant’s conviction for petty theft with a prior only. On November 13, 2014, the superior court dismissed this petition. On December 1, 2014, defendant filed a notice of appeal. Subsequent to his notice of appeal, defendant appears to have filed a petition under section 1170.18 (Prop. 47), which was granted as to count 1, petty theft with a prior. On March 24, 2015, the superior court ordered defendant’s felony sentence in count 1