People v. Wadkins CA5

California Court of Appeal Apr 14, 2021 No. F079116Unpublished

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Holding. The court held that Penal Code section 1170.91 does not apply to defendants serving indeterminate sentences, as the statute is limited to determinate terms imposed under section 1170, subdivision (b).

Issues

Whether the trial court erred in denying a petition for recall of sentence under Penal Code section 1170.91 without appointing counsel or holding a public hearing.
Whether Penal Code section 1170.91 applies to defendants serving indeterminate sentences.

Disposition. affirmed

Quotations verified verbatim against the opinion

“section 1170.91 only applies to determinate terms imposed under section 1170, subdivision (b).”

“Both straight life sentences and sentences of some number of years to life are indeterminate sentences not subject to the Determinate Sentencing Act, section 1170 et seq.”

“Since defendant would have been ineligible for relief under section 1170.91, the court’s purported error was not prejudicial.”

Filed 4/14/21 P. v. Wadkins 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079116 Plaintiff and Respondent, (Super. Ct. No. VCF055940-00) v.

WAYNE ELDON WADKINS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

BACKGROUND In 2000, defendant Wayne Eldon Wadkins was charged with two counts of committing a lewd or lascivious act upon a child under 14 years of age (Pen. Code,1 § 288, subd. (a) [counts 1 & 2]). As to both counts, the information alleged he was convicted in 1992 of committing a lewd or lascivious act upon a child under 14 years of age, a qualifying “strike” offense under the Three Strikes law (§ 1170.12, subd. (c)(2)(A)) and a serious felony (§ 667, subd. (a)(1)); was convicted in 1992 of a second count of committing a lewd or lascivious act upon a child under 14 years of age and continuous sexual abuse of a child, two more qualifying “strike” offenses (§ 1170.12, subd. (c)(2)(A)); and previously served a prison term (§ 667.5, subd. (b)). The information further alleged defendant was subject to the habitual sexual offender statute (§ 667.71) as well as enhanced punishment under sections 667.51, subdivision (a), and 667.6, subdivision (a). Following a trial, he was found guilty as charged and all special allegations were found true. Defendant received an aggregate sentence of 155 years to life: 25 years to life, tripled pursuant to the Three Strikes law, plus five years for the prior serious felony enhancement, on count 1; and a consecutive 25 years to life, tripled pursuant to the Three Strikes law, on count 2. On January 29, 2019, defendant filed a pro. per. petition for recall of sentence under section 1170.91. He stated he received “an indeterminate term of life imprisonment” in 2000 and was “currently serving a draconian sentence of 155 years to life.” The petition further specified:

People v. Wadkins CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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