People v. Metters CA1/2

Filed 10/15/15 P. v. Metters CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A144229 v. JAMES R. METTERS, JR., (Alameda County Super. Ct. No. C121038) Defendant and Appellant.

In July 1996, following conviction of the “Three Strikes” law third offense of second degree robbery, James R. Metters, Jr. was sentenced to a term of 35 years to life. This court affirmed.1 In November 2014, following adoption of Penal Code section 1170.126 by the voters as Proposition 36, Metters sent a “Petition for Recall of Sentence” prepared by him. Metters stated as the grounds for the petition that he “is optimistic

1 Metters has submitted a “Motion . . . For Judicial Notice of People v. Metters (1998) 61 Cal.App. 4th 1489.” That was the opinion in which we affirmed the judgment of conviction. However, the Supreme Court granted review, which meant that the opinion originally published at 61 Cal.App.4th 1489 was “no longer considered published.” (Cal. Rules of Court, rule 8.1105(e)(1).) The Supreme Court thereafter transferred the cause back to this court for reconsideration in light of People v. Cleveland (2001) 25 Cal.4th 466 (People v. Metters (Oct. 17, 2001, S069442 [order].) Pursuant to that directive, we filed an opinion that was not certified for publication. (People v. Metters (Sept. 23, 2002, A074986) [nonpub. opn.].) Treating the pending motion as a request to take judicial notice of our first opinion, filed on March 10, 1998, we grant the request because the opinion may be “relevant to a criminal . . . action because it states reasons for a decision affecting the same defendant . . . in another such action.” (Cal. Rules of Court, rule 8.1115(b)(2).)

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about a recall of sentence and hereby requests a re-sentencing hearing . . . to reduce the defendant’s punishment by striking a strike pursuant to Penal Code § 1385, and ‘in the interests of justice.’ ” Metters elaborated: “The nature and circumstances of the Petitioner’s case are extremely different than a normal case involving the crime of robbery. There are mitigating circumstances that lead up to, encouraged, and enticed the Petitioner to indulge in the crime of robbery. Several hours before the Petitioner committed the robbery against one Mrs. Joyce Wilson, a cashier at a Wendy’s restaurant located . . . in Oakland, . . . the Petitioner was abducted and held against his will by several drug dealers [to whom he owed money]. . . . With no other viable means to procure the remaining $200.00, in fear of his life and his family’s well being, the Petitioner called a taxi and set off to commit the crime of robbery.”2 The petition was summarily denied, but the court (Hon. Larry J. Goodman) wrote a four-page order explaining the denial. First, Judge Goodman concluded that Metters was categorically ineligible for relief: “Subdivision (b) of section 1170.126 states in relevant part, ‘[a]ny person serving an indeterminate term of life imprisonment imposed . . . upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, . . . , to request resentencing . . . .’ [T]he crime of robbery (section 211) is defined as both a violent and as a [serious] felony. (See sections 667.5, subd. (c) (9), and 1192.7, subd. (c)(19).) Thus, by the express terms of the statute [i.e., section 1170.126] Petitioner is not eligible to have his sentence recalled and be resentenced . . . .” Next, for the same reason, Judge Goodman concluded “Petitioner’s argument that he falls within the spirit of the law and the voters’ intent is also without merit.” The third and final reason for the denial was the rejection of Metters’s request “to strike one of his priors in the interest of justice pursuant to section 1385 and People v.