People v. Magana CA2/3

Filed 4/28/16 P. v. Magana CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B266274

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA209316) v.

MIGUEL MAGANA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Defendant Miguel Magana appeals from the denial of his petition for recall of sentence under Proposition 36, the Three Strikes Reform Act of 2012 (Act). We affirm. PROCEDURAL BACKGROUND In 2001, Magana was found guilty of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a))1 and assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), each with personal use of a deadly or dangerous weapon (§12022, subd. (b)(1)), and first degree burglary (§ 459). Magana admitted two prior convictions of robbery (§ 211) and residential burglary (§ 459). (§ 667, subd. (d)). The trial court sentenced Magana to a Three Strikes term of 25 years to life in state prison. (The judgment was affirmed on appeal in People v. Magana (Jan. 31, 2002, B148974) [nonpub. opn.].) On June 15, 2015, Magana, acting in propria persona, filed a petition for writ of habeas corpus. He “petition[ed] for recall of his sentence pursuant to . . . section 1170.126” and “further allege[d] that his sentence and ju[d]gment restrain[ed] [him] of his liberty in violation of California and federal constitutions and law.” He set forth three grounds for relief: (1) resentencing him would not pose an unreasonable risk of danger to public safety, (2) his strike priors should be dismissed in the interest of justice, and (3) his trial counsel rendered ineffective assistance by convincing Magana to admit his prior convictions. The trial court treated part of the habeas petition as a Proposition 36 petition and, on June 25, 2015, denied the petition as untimely because it “was not filed within the two-year deadline from the effective date of Proposition 36 (November 7, 2012), as required by section 1170.126(b)[,] and good cause was not stated for the late filing.” The court denied the rest of the habeas petition without prejudice to refiling it as a separate petition in the sentencing court. Defendant timely appealed from the denial of his petition to recall his sentence.