People v. Wheaton CA5

Filed 4/21/16 P. v. Wheaton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070712 Plaintiff and Respondent, (Fresno Super. Ct. No. F96558913) v.

DARREN TODD WHEATON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Peña, J.

Defendant/appellant Darren Todd Wheaton appeals from the denial of his petition to recall his sentence pursuant to the Three Strikes Reform Act of 2012 (the Act). We agree with the trial court that defendant is ineligible for resentencing and affirm the order. FACTUAL AND PROCEDURAL SUMMARY The opinion issued by this court affirming defendant’s convictions (People v. Wheaton (Nov. 21, 1997, F026986) [nonpub. opn.]) is the primary source of the following factual summary. In 1996, defendant was convicted of six counts of second degree robbery (Pen. Code, §§ 211, and 212.5, subd. (c))1 and one count of conspiracy to commit robbery (§§ 182, subd. (a)(1), and 211). The trial court also found true the allegations that defendant had suffered three prior convictions that constituted both strikes pursuant to section 667, subdivisions (b) through (i), and serious felony convictions pursuant to section 667, subdivision (a) and 1192.7, subdivision (c). He was sentenced to a total prison term of 165 years to life. In 2014, defendant filed a petition seeking recall of his sentence pursuant to the provisions of section 1170.126. The trial court summarily denied the petition finding defendant was ineligible for resentencing. Defendant appeals from denial of his petition. DISCUSSION Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asserting that after reviewing the record she could not identify any arguable issues in this case. By letter dated March 18, 2015, we invited defendant to inform the court of any issues he wished addressed. Defendant did not respond to our letter. After thoroughly reviewing the record, we agree with appellate counsel there are no arguable issues.