California Court of Appeal Feb 2, 2016 No. E064418Unpublished
Filed 2/2/16 P. v. Jones CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064418
v. (Super.Ct.No. RIF083076)
KEVIN ANTHONY JONES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.
Affirmed.
Kevin Anthony Jones, in pro. per.; and Robert Booher, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Kevin Anthony Jones appeals from an order denying his
petition for recall of his indeterminate life term under Penal Code section 1170.126,
subdivision (f).1 We will affirm the order.
1 All future statutory references are to the Penal Code unless otherwise stated.
1
I
FACTUAL AND PROCEDURAL BACKGROUND
In October 1998, defendant committed a bank robbery.
proceedings are “distinguishable from other sentencing proceedings,” and any sentencing
reduction must be carried out in accordance with its stated terms. (Ibid.) Since there is
nothing in Proposition 36 that authorizes a collateral attack on a prior strike conviction,
the trial court was not empowered to conduct a hearing to review the factors related to his
prior strike convictions in this case.
We also reject defendant’s claim that the trial court erred in denying his petition
without a hearing. “[D]ue process does not command a hearing on the threshold criteria
that establish entitlement to resentencing.” (People v. Oehmigen (2014) 232 Cal.App.4th
6
1, 7, italics omitted; see Kaulick, supra, 215 Cal.App.4th at pp. 1298-1299, fns. 21 and 23
[suggesting that, if only the undisputed record of conviction is considered on the question
of eligibility, a defendant does not have a right to a hearing on the issue]; Bradford,
supra, 227 Cal.App.4th at p. 1337 [an evidentiary hearing is not contemplated by the
statute at the initial eligibility stage].)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
III
DISPOSITION
The order denying defendant’s request to recall his sentence and to be resentenced
pursuant to section 1170.126 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
McKINSTER J.
MILLER J.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant was ineligible for resentencing under the Three Strikes Reform Act because his commitment offense of robbery is a serious and violent felony, and the trial court was not required to hold a hearing to determine eligibility.
Issues
Whether a defendant convicted of robbery is eligible for resentencing under Penal Code section 1170.126.
Whether the trial court is required to conduct a hearing to determine eligibility for resentencing under the Reform Act.
Whether a defendant may collaterally attack prior strike convictions during a Proposition 36 resentencing proceeding.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Defendant’s commitment offense of robbery is a violent felony under section 667.5, subdivision (c)(9). Under section 1192.7, subdivision (c)(19), robbery is a serious felony.”
“[D]ue process does not command a hearing on the threshold criteria that establish entitlement to resentencing.”
“Since there is nothing in Proposition 36 that authorizes a collateral attack on a prior strike conviction, the trial court was not empowered to conduct a hearing to review the factors related to his prior strike convictions in this case.”