People v. Olague CA5

Filed 5/6/16 P. v. Olague 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070480 Plaintiff and Respondent, (Super. Ct. No. BF103325A) v.

EDWARD OLAGUE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Jeffrey S. Kross, 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 Gomes, Acting P.J., Kane, J. and Peña, J.

INTRODUCTION On August 6, 2014, the Kern County Public Defender’s Office filed a petition to have defendant Edward Olague resentenced pursuant to Proposition 36 and Penal Code section 1170.126.1 On November 17, 2014, the trial court denied defendant’s petition for resentencing, finding him ineligible under Proposition 36. Defendant’s appellate counsel has filed a brief stating there are no issues and seeks independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm the judgment. FACTS AND PROCEEDINGS In October 2003, at the conclusion of a jury trial in Kern County case No. BF103325A, defendant was found guilty of felony battery on a custodial officer (§ 243.1) and felony obstruction of an executive officer (§ 69). The jury also found five prior serious or violent felony convictions were true pursuant to the three strikes law. The prior felony convictions included three robberies (§ 211), forcible oral copulation by force or fear (§ 288a, subd. (c)), and battery with serious bodily injury (§ 243, subd. (d)). Defendant was sentenced to a prison term of 25 years to life. After defendant filed his petition for resentencing, the People filed opposition, noting defendant’s conviction for violating section 288a, subdivision (c) made him ineligible for resentencing under Proposition 36. The People made available our opinion in defendant’s appeal from his earlier conviction, inter alia, for forcible oral copulation by means of force or fear. (People v. Olague (Oct. 19, 1988, F008691) [nonpub. opn.].) The facts of our earlier opinion state that while incarcerated in the Kern County jail on October 22, 1986, defendant and other inmates attacked and beat cellmate William D. Defendant later asked William D. to orally copulate him. William D. complied out of fear.