People v. Smith CA5

Filed 6/1/16 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070794 Plaintiff and Respondent, (Super. Ct. No. SC058746A) v.

DANIEL SMITH, OPINION Defendant and Appellant.

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

Thomas M. Singman, 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 Detjen, Acting P.J., Peña, J., and Smith, J.

INTRODUCTION Appellant Daniel Smith was convicted of rape and being a felon in possession of a firearm in 1982; it also was found true he personally used a firearm in the commission of the rape. On September 23, 1994, Smith was sentenced, pursuant to the three strikes law, to a term of 25 years to life for possession of heroin. Smith filed a petition for recall of the sentence and resentencing pursuant to Penal Code1 section 1170.126. The petition was denied and Smith appeals. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm. FACTUAL AND PROCEDURAL SUMMARY On March 18, 1982, following a jury trial, Smith was convicted of violating section 261, subdivision (2), rape accomplished by means of force, violence, duress, menace, or fear; and violating former section 12021, being a felon in possession of a firearm. It also was found true that Smith personally used a firearm within the meaning of section 12022.5, in the commission of the rape. On September 23, 1994, Smith was sentenced as a third strike felon to a term of 25 years to life for possession of heroin in violation of Health and Safety Code section 11350, subdivision (a). Pursuant to section 1170.126, on October 7, 2014, Smith filed a petition to recall the sentence and for resentencing. The People opposed Smith’s petition on the basis that Smith was statutorily ineligible for resentencing. A hearing on the petition was held on December 19, 2014. The trial court denied the petition on the basis Smith was ineligible for resentencing. On December 26, 2014, Smith filed a notice of appeal of the denial of his petition. Appellate counsel was appointed March 10, 2015. On June 25, 2015, appellate counsel filed a Wende brief. Also on June 25, 2015, this court issued its letter to Smith inviting Smith to submit supplemental briefing. No supplemental brief was received.