People v. Wimberly CA2/4

Filed 11/23/20 P. v. Wimberly CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B304667

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA156752) v.

CRAIG E. WIMBERLY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa B. Lench, Judge. Dismissed. Richard Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

INTRODUCTION In 1998, a jury convicted appellant Craig Wimberly of solicitation of murder. (Pen. Code, § 653f, subd. (b).)1 The jury also found true the allegations regarding appellant’s two prior strike convictions for robbery. (§ 211.) The trial court imposed a sentence of 25 years to life under the Three Strikes Law. (§§ 667, 1170.12.) In People v. Wimberly (Feb. 2, 2000, B124020) [nonpub. opn.], this court modified the conviction to reflect a $2,000 parole revocation fine and affirmed. Subsequently, appellant appealed the trial court’s denial of his petition for resentencing under section 1170.126, which amended the Three Strikes Law. We affirmed the trial court’s decision in People v. Wimberly (Dec. 20, 2017, B281550) [nonpub. opn.]. On January 10, 2020, appellant filed a motion for modification of his sentence pursuant to section 1016.8. He argued that at the time he entered guilty pleas to two prior robberies in 1985 and 1988, he was not told that those convictions could be used to enhance a later sentence under the Three Strikes Law, and therefore his sentence should be modified under section 1016.8. The trial court denied appellant’s motion, stating that the newly-enacted section 1016.8 did not apply to defendant’s case and, further, that defendant had not waived any future rights in entering into the plea agreements at issue. Appellant appealed. Appellant’s appointed counsel filed a brief requesting that we independently review the record for error pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We directed counsel to send the record and a copy of the brief to appellant, and notified