People v. Holt CA4/3

Filed 5/25/16 P. v. Holt CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G050663

v. (Super. Ct. No. 97NF2363)

DANA ANTONIO HOLT, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Dana Antonio Holt appeals from the trial court’s postjudgment order denying his petition for recall of sentencing (Pen. Code, § 1170.126). Holt argues the court erred by denying his petition because his conviction for conspiracy to commit robbery was not a serious or violent offense when he committed it. After briefing in this case was complete, the California Supreme Court filed its opinion in People v. Johnson (2015) 61 Cal.4th 674 (Johnson), and we invited the parties to submit supplemental briefs on its applicability. In its supplemental brief, the Attorney General argues Johnson requires we affirm. Holt, however, argues Johnson does not dispose of his claim because cases are not authority for propositions not considered. As we explain below, we agree with the Attorney General. We affirm the postjudgment order. FACTS In 1998, a jury convicted Holt of conspiracy to commit robbery (Pen. Code, §§ 182.1, 211, all further statutory references are to the Pen. Code). At a bifurcated bench trial, the trial court found Holt suffered two prior serious felony convictions for robbery. This was his third strike conviction (§§ 667, subds. (d) & (e)(2), 1170.12, subds. (b) & (c)(2)). The court sentenced Holt to 25 years to life in prison. In March 2013, Holt filed a petition for recall of sentencing pursuant to section 1170.126. The trial court denied that petition. In our prior nonpublished opinion People v. Holt (May 9, 2014, G048465) [nonpub. opn.], we affirmed based on procedural grounds—Holt filed his petition in propria persona while he was represented by counsel. In July 2016, Holt’s counsel filed a petition for recall of sentencing pursuant to section 1170.125. The trial court denied Holt’s petition, ruling the commitment offense, conspiracy to commit robbery, was a serious felony. DISCUSSION The Three Strikes Reform Act of 2012 (the Act), amended sections 667 and 1170.12 and added section 1170.126. As relevant here, section 1170.126 allows