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Filed 2/28/14 P. v. Gordon CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. WILLIAM GORDON, Defendant and Appellant. A138805 (San Mateo County Super. Ct. No. SC035737)

In this case, defendant, William Gordon, pled guilty to one count of robbery and
admitted the firearm use enhancement attached to the count. He did this in 1996

. He also admitted three prior conv ictions as strike priors. Pursuant to the agreement, the remaining counts and enhancements were dis missed and he was sentenced to state p rison for a term of 30 years. On March 12 , 2013, defendant filed a form petition for recall of

s entence pursuant to P enal Code section 1170.126 (Proposition 36). 1 Defendant obtained appoi nted counsel. He then filed a m oti on for recall and r esentencing under
section 1170.126. The new motion conceded defendant was ineligible for relief under Proposition 36 because the t hird strike was a robbery conviction. Yet, defendant argued a categorical denial of relief under the statute amounted to a denial of equal protection
under the federal and California Constitution s

.

1 All further statutory references are to the Penal Code unless otherwise indicated.2

On May 17, 2013, the court after a hearing denied the motion. This appeal was then timely filed. Appellate counsel for defendant has made an independent review of the trial court proceedings. He has concluded no meritorious claims are presented for appeal. He has
advised defendant of this conclusion and t old Gordon he may file a supplemental pleading raising issues he believes merit appellate review. We have received a supplemental letter from defendant indicating his assessment of the matter. This letter was received on November 19, 2013. In it, Gordon acknowledges his past failures and indicates he has reassessed the need to become a more responsible member of society. To attain this goal, defendant plans on attending academic classes and counseling to provide better control over his life plans

. Pursuant to People v. Kelly (2006) 40 Cal.4 th 106, 119 and People v. Wende (1979) 25 Cal.3d 436, counsel has asked us to conduct an independent review of the record. We have done this review and find no issues meriting further appellate
consideration.
S TA TEMENT OF THE C ASE An information was filed on January 20, 1995 in San Mateo Superior Court charging defendant with thre e counts of robbery (§ 212.5) and firearm use allegations ( § 12022.5, subd. (a)), one count of attempted robbery with a firearm use , and two count s of aggravated assault ( § 245, subd. (a)), vehicle theft (Veh

. Code , § 10851, subd. (a)), resisting arrest ( Pen. Code, § 148) providing false identification ( § 148.9, subd. (b), evading a police officer ( Veh. Code, § 2800.3) and escape from jail ( Pen. Code, § 4532, subd. (b)). The information alleged two prior robbery convictions and one prior attempted robbery conviction, all within t he meaning of the three s trikes law, as well as section 667, subdivision (a) and s ection 667.5, subdivision (b). In a plea agreement, defendant pled guilty to one count of robbery and admitted the use of a firearm enhancement for that count. He also acknowledged three prior strike3

convictions. The remaining counts and enhancements in the information were di smissed. The plea agreement entailed a prison sentence of 30 years to life.
On Mar ch 12, 2013, defendant filed a petition for recall of s entence under the new
secti on 1170.126 or Proposition 36. In support of his p etition, Gordon attached evidence
of his good conduct and rehabilitation efforts. After obtaining the services of appointed trial counsel, defendant modified his Petition

. The hearing was held on May 17, 2013. Counsel contended the denial of Proposition 36 benefits to a prisoner sentenced before the passage of the reform deni es Gordon his rights under the equal p rotection clause of the federal and California
Constitution s

. The trial court denied the motion. In his ruling the trial court announced in part:
“I ’m going to assume for purpos es of argument that he has done extremely well . . . in the prison system. [¶] But the three s trikes law Prop. 36 is very clear as to who is entitled to
seek relief and re

- sentencing which is an extraordinary procedure. And it depends on the
nature of th at last offense. That being the case, I don’t find there to be a violation of the equal protection provi sions of the state and federal C onstitutions. I find that was within the prerogatives of the People in passing the initiative to limit the remedy to a certain type of offender. [¶] So under those circumstances, I find that the defendant is not eligible for the relief under Prop. 36 and the motion to re

- call and re

- sentence is denied.”
W
D ISCUSSION The passage of Proposition 36 amended the three s trik es law so that an indeterminate sentence of 25 years to life in prison is applied only where the “ third
strike ” conviction is a serious or violent felony, or where the government alleges and proves other specific factors. ( §§ 667, subd. (e)(2)(C), 1170.12 , subd. (c)(2)(C)

. ) This reform also added section 1170.126 which permitted inmates sentenced under the prior

vers ion of three s trikes to petition for a recall of their sentence if they would not have4

been sentenced to an indeterminate life sentence under these sentencing reforms. ( § 1170.126, subds. (a)

– (b)

. ) An inmate is now eligible for resentencing if the statutory
criteria are satisfied, including the requirement the current commitment offense is not a serious or violent felony. ( § 1170.126, subd. (e)

. ) Currently, there is a split of appellate decision whether a trial court’s eligibility determination under Prop osition 36 and the legislation results in an appealable order. In People v. Wortham (2013) 220 Cal.App.4 th 1018, 1021 , review granted January 14, 2014, S214844 , Division Four of this District concluded the trial court ruling results in appellate review because the initial decision involves a substantial right. The Third
District in People v. Leggett (2013) 219 Cal.App.4 th 846 , review granted December 18, 2013, S214264, concluded this trial court ruling does not affect the defendant’s “substantial rights” under section 1237, subdivision (b). Hence there is no right to appeal. This general issue is currently before our Sup reme Court. 2 Here, we find this is no issue , even if the ruling is appealable . Section 1170.126, subdivision (b) provides the foundation for a trial court review under Proposition 36. “Any person serving an indeterminate term of life imprisonment impo sed pursuant to paragraph (2) of subdivision (e) of section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious or violent felonies by subdivision (c) of section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence . . . [t]o request resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12 as those statut es have been amended by the [Reform Act.]” However, an inmate is not eligible for modification if he or she is

2 The Supreme Court granted review on this issue in Teal v. Superior Court (2013) 217 Cal.App.4th 308, July 31, 2013, S211708, and in People v. Hardwood (2 013) 216 Cal.App.4th 941 , July 13, 2013, S212017.5

sentenced currently for a felony defined as serious and/or violent under subdivision (c) of section 667.5 or subdivision (c) of section 1192.7.
Under section 667.5 , subdivision (c)(9) robbery is a violent felony. Under
section 1192.7 , subdivision (c)(19), robbery is a serious felony. Hence, the Legislature and the voters have precluded this defendant from any reconsideration of sentence based on Proposition 36 and its reforms. Regarding the claim of Equal Protection, the decision to treat crimes distinctly as to sentencing consequences generally does not trigger a valid challenge. ( See People v. Floyd (2003) 31 Cal.4 th 179, 188 [ treating t hose convicted of drug offenses differently
based on the date of their conviction does not en tail equal protection challenge] ; People v. Lynch (2012) 209 Cal.App.4 th 353, 359 [ the benefits of Realignment Act of 2011 can be prospective only precluding relie f for those convicted of t he same offenses before passage]

. ) With these cases in mi nd, it seems clear there is no e qual p rotection issue where the Legislature and the voters have determined a person currently serving a
sentence for a third strike cannot e njoy the benefits of Proposition 36. Appropriately, l ess serious prison inmates can realize benefits more serious offenders are precluded from experiencing.
D ISPOSITION We affirm the ruling of the trial court on the merits.

_________________________ Dondero, J.

We concur:

_________________________ Margulies, Acting P. J.

_________________________ Banke, J.