People v. Tatmon CA1/2

Filed 12/8/15 P. v. Tatmon CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A143914 v. MITCHELL TATMON, (Alameda County Super. Ct. No. C146926A) Defendant and Appellant.

Mitchell Tatmon appeals from the superior court’s denial of his petition for recall of sentence, which he brought pursuant to the Three Strikes Reform Act of 2012 (Act). His court-appointed counsel initially filed a brief raising no legal issues and requesting that this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant was informed of his right to file a supplemental brief and did not do so. While this matter was pending, our Supreme Court issued People v. Johnson (2015) 61 Cal.4th 674 (Johnson). Its holding contradicted the reasoning employed by the superior court to deny defendant’s petition. We asked for and received supplemental briefing regarding Johnson from defendant, via his counsel, and the People. Upon our independent review of the record pursuant to Wende and our review of the parties’ supplemental briefs, we conclude there are no arguable appellate issues for our review and affirm the superior court’s order. BACKGROUND On September 23, 2014, defendant filed his petition with the Alameda County Superior Court. He argued that he was eligible for resentencing under the Act, which

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was passed by California’s voters as Proposition 36 and codified as Penal Code section 1170.126.1 The Act permits resentencing for inmates serving certain indeterminate terms of imprisonment “for a conviction 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.” (§ 1170.126, subd. (e)(1).) In the written order appealed from here, the superior court summarized defendant’s convictions as follows: “A first amended information charged [defendant] with carjacking (count 1; § 215, subd. (a)), second degree commercial burglary (count 2; § 459), false imprisonment by violence (count 3, § 236), and second degree robbery (count 4, § 211), with special allegations of personal use of a knife on the first three counts (§ 12022, subd. (b) (1)). [¶] A jury sustained each charge and special allegation. [Defendant] then waived his rights and admitted numerous alleged prior convictions, including several strikes on each count (§ 667, subd. (e) (2) (A)), § 1170.12, subd. (c) (2) (A)). The trial court sentenced him, under the Three Strikes Law, to an aggregate term of 93 years to life in prison, the main component being 75 years to life for three consecutive Three Strike terms (on counts two, three and four).” The parties do not dispute the accuracy of the superior court’s summary.2 Given these convictions, the superior court denied defendant’s petition pursuant to People v. Anthony (2014) 230 Cal.App.4th 1176 (Anthony). Anthony held that the Act cannot be applied to reduce a Three Strikes sentence when any one of the Three Strikes offenses underlying the sentence is a serious or violent felony. The superior court, applying Anthony’s holding to the present case, correctly concluded that “any robbery” is defined to be a violent felony pursuant to section 667.5, subd. (c)(9), one of the statutes that defines “serious or violent felonies” under the Act. (§ 1170.126, subd. (e)(1).) The 1 All statutory references are to the Penal Code. 2 The People request that we take judicial notice of the record of defendant’s prior appeal, People v. Tatmon, case number A109381, and argue that defendant in his supplemental brief has done the same by implication. We deny this request as unnecessary in light of the superior court’s undisputed summary of defendant’s convictions.