People v. Roe CA2/7

Filed 4/26/21 P. v. Roe CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B306386

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA312218-02) v.

RUPERT MILA ROE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Richard S. Kemalyan, Judge. Dismissed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Rupert Mila Roe purports to appeal from an order denying his petition for writ of habeas corpus, a nonappealable order. (Robinson v. Lewis (2020) 9 Cal.5th 883, 895; In re Clark (1993) 5 Cal.4th 750, 767, fn. 7; Cox v. Superior Court (2016) 1 Cal.App.5th 855, 858.) Accordingly, Roe’s appeal must be dismissed. Even were we to deem this matter an appeal from a nonstatutory motion for modification of sentence in the superior court or a new petition for a writ of habeas corpus in this court, Roe’s contention his 2007 sentence as a third strike offender should be modified in light of recently enacted Penal Code section 1016.81 is devoid of merit. FACTUAL AND PROCEDURAL BACKGROUND Roe was convicted by a jury in 2007 of two counts of kidnapping (§ 207, subd. (a)). In a bifurcated proceeding the trial court found true the allegations Roe had suffered two prior serious felony convictions within the meaning of the three strikes law (§§ 667, (b)-(j), 1170.12) and sentenced Roe to consecutive indeterminate state prison terms of 25 years to life. We affirmed the judgment. (People v. Roe (Jan. 13, 2009, B201370) [nonpub. opn.].) On March 5, 2020 Roe, representing himself, filed a petition for writ of habeas corpus alleging his two prior strike convictions were the product of negotiated plea agreements in the State of Washington in 1992, prior to the 1994 enactment of California’s three strikes law. Citing Assembly Bill No. 1618 (2019-2020 Reg. Sess.) (Assembly Bill 1618), which, effective January 1, 2020, added section 1016.8 to the Penal Code,