People v. Maldonado CA5

Filed 2/22/16 P. v. Maldonado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070860 Plaintiff and Respondent, (Super. Ct. No. DF009264A) v.

JUAN FRANCISCO MALDONADO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Franson, J.

INTRODUCTION Appellant Juan Francisco Maldonado appeals from the trial court’s denial of his petition seeking resentencing pursuant to Penal Code section 1170.126. 1 The petition was denied because the trial court found Maldonado ineligible based upon his prior conviction for a sexually violent offense for which he was serving an indeterminate life sentence. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm. FACTUAL AND PROCEDURAL SUMMARY Maldonado filed a petition for recall of sentence on October 6, 2014. The petition alleged that Maldonado was serving a third strike sentence of 25 years to life based upon a conviction for possession of heroin in prison, a violation of section 4573.6. The petition acknowledged that Maldonado had suffered two prior felony convictions, including a conviction for oral copulation in concert, a violation of section 288a, subdivision (d). In the petition, Maldonado asserted that none of his prior convictions were for a violent sexual offense listed in Welfare and Institutions Code section 6600, subdivision (b), or a serious and/or violent felony offense punishable by life in prison. The People opposed the motion, asserting that Maldonado was ineligible for resentencing because of the section 288a, subdivision (d) conviction. A report from the probation office opined that Maldonado was ineligible for resentencing because he had suffered a conviction for violating section 288a, subdivision (d) and had been sentenced pursuant to section 667.61. The section 288a, subdivision (d) offense was a sexually violent offense listed in Welfare and Institutions Code section 6600, subdivision (b), making Maldonado ineligible for resentencing pursuant to Penal Code section 667, subdivision (e)(2)(C)(iv)(I). The probation report also noted that Maldonado’s sentence