People v. Cowan CA5

Filed 7/8/16 P. v. Cowan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070422 Plaintiff and Respondent, (Super. Ct. No. SC078781A) v.

STUART LELAND COWAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order 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 Franson, Acting P.J., Peña, J. and Smith, J.

Appellant Stuart Leland Cowan appeals from the court’s denial of his petition for recall of sentence pursuant to Penal Code section 1170.126.1 Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we affirm. FACTUAL AND PROCEDURAL HISTORY On October 29, 1999, Bakersfield police officers stopped a vehicle in which Cowan was a passenger. During the stop, the officers found a dagger eight to nine inches long in Cowan’s waistband and two syringes in Cowan’s backpack. A subsequent blood draw from Cowan tested positive for amphetamines, barbiturates, and opiates. On January 21, 2000, a jury convicted Cowan of possession of a dirk or dagger (former § 12020, subd. (a)), possession of narcotics paraphernalia (Health & Saf. Code, § 11364), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). On January 24, 2000, the court found true three prior prison term enhancements (§ 667.5, subd. (b)) and allegations that Cowan had three prior convictions within the meaning of the Three Strikes law (§ 667, subds. (b)-(i)). On March 1, 2000, the court sentenced Cowan to 25 years to life on his possession of a dagger conviction, plus three one-year prior prison term enhancements. On November 6, 2012, California voters passed the Three Strikes Reform Act of 2012 (the Act; § 1170.126) which became effective the next day. In pertinent part, the Act establishes a procedure for an offender serving an indeterminate life sentence for a third strike conviction that is not deemed a serious and/or a violent felony to file a petition for recall of sentence and to be resentenced as a second strike offender. (Teal v. Superior Court (2014) 60 Cal.4th 595, 596-597, § 1170.126, subd. (f).) On August 7, 2014, Cowan filed a Petition for Recall of Sentence pursuant to section 1170.126.