Filed 3/6/14 P. v. Walker CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
MICHAEL WALKER,
Defendant and Appellant. B251951
(Los Angeles County Super. Ct. No. BA118862)

APPEAL from a judgment of the Su perior Court of Los Angeles County, William C. Ryan, Ju dge. Affirmed.

California Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of Appe al, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________2 Defendant and appellant, Michael Walke r, appeals from the trial court’s order dismissing his motion for rec onsideration of the order de nying his petition for recall of his 25-years-to-life sentence imposed pursua nt to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) 1 and requesting that he instead be sentenced pursuant to section 1170.126. 2 We affirm the trial court’s order dismissing
Walker’s motion.
FACTUAL AND PROCED URAL BACKGROUND Following a trial during which a jury found him guilty of willfully evading a police officer (Veh. Code, § 2800.2), on May 10, 1996, the trial c ourt sentenced Walker to an indeterminate term of 25 years to life in prison because the offense was his third strike within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Acting in propria persona, on November 19, 2012, Walker filed in the trial court a petition for recall of his sentence pursuant to section 1170.126. After reviewing the petition, the trial court filed an order on January 11, 2013, in which it stated: “Pursuant
to . . . section 1170. 126[, subdivision] (d), defendants se eking recall of sentence under that statute must ‘specify all of the currently charged feloni es which resulted in’ the third strike sentence and must ‘also specify all of the prior convictions alleged and proved’ as second strikes. Here, defendant has failed to specify all of the prior strike convictions alleged and proved by the People during the underlying criminal proceedings. [¶] Defendant has also failed to allege service of the petition upon the People. A copy of any petition for recall of sentence filed with the co urt must be served up on the People at the office of the District Attorney, Appellate Divi sion . . . . [¶] For the foregoing reasons, the petition for recall of sentence is denied without prejudice to refile a petition which

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

2 Section 1170.126 provides that a defendant may be resentenced if, among other conditions , his or her most recent offense did not amount to a “strike” pursuant to the provisions of the Three Strike s law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The statute, which was added by the initiative process as Proposition 36, became effective November 7, 2012.3 complies with . . . se ction 1170.126 and shows service on the office of the District Attorney.” On February 15, 2013, Wa lker, again acting in propria persona, filed a second petition in the trial court pursuant to section 11 70.126. On March 21, 2013, the trial court
filed a memorandum of decision in which it stated: “Petition for Recall of Sentence
Pursuant to . . . section 1170.1 26 by Michael Walker (‘Defendant’), pro se . No appearance by respondent. Petiti on denied with prejudice. [¶] The Court has read and considered the petition for recall of sentence pursuant to . . . section 1170.126 filed by Defendant on February 15, 2013. [¶] Defendant has suffe red a prior conviction under . . . section 667[, subdivision] (e)(2)(C )(iv)(I), making Defendant ineligible for resentencing under . . . section 1170.126. [¶] For the foregoing reason, the petition for
recall of sentence is DE NIED WITH PREJUDICE.” 3 A review of Walker’s “prior record ” indicates, on September 16, 1983, when Walker was 18 or 19 years old, he committe d the felony of “oral copulation with [a]

3 Among the other conditions provided for in section 1170.126 is that the defendant may not previously have been convicted of “a ny of the offenses app earing in clause (iv) of subparagraph (C) of paragrap h (2) of subdivision (e) of Sec tion 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivis ion (c) of Section 1170.12.” (§ 1170.126, subd. (e)(3).) Subdivision (e)(2 )(C)(iv) of section 667 indi cates that “[t]he defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section for any of the following felonies : [¶] (1) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare a nd Institutions Code.” That provision, subdivision (b) of section 6600 of the Welfare a nd Institutions Code, indicates a “ ‘[s]exually violent offense’ means th e following acts when committed by force, violence, menace, fear of immediate and unla wful bodily injury on the victim or another person . . . and result in a conviction of . . . [the] felony . . . of Section . . . 288a.” Section 288a, subdivision (c)(1) provides: “Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison.” Section 288a, subdivision (c)(2)(A) states: “Any pers on who commits an act of oral copulation when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unla wful bodily injury on the victim . . . shall be punished by imprisonment in the state prison.”4 person under 14 or with force” in violation of section 28 8a, subdivision (c) and was committed to the California Youth Authority. 4 On September 5, 2013, Walker, acting in propria persona, filed in the Superior
Court a motion for reconsideration of the trial court’s decision. Walker indicated his late filing of such a motion should be excused under a “ ‘cause and prejudice’ ” exception. Walker indicated, after filing his February 15th motion, he was transferred from Mule Creek State Prison to another facility where, on April 22, 2013, hi s property, including his mail, was taken away from him and he was placed in “the hole” for “unfounded allegations.” 5 Once he was released from the hole, the prison was placed on “lockdown” and he was unable to visit the law library. Du e to these “ ‘external force[s]’ ” which were beyond his control, Walker was unable to f ile a timely motion for reconsideration which he alleges “could have changed the re-sentenc ing outcome.” Walker’s primary assertion is that, although he was innocent of the 198 3 charge of forcible oral copulation, he entered into a plea bargain regarding the offe nse because his counsel had advised him to
do so. In a memorandum of decision filed Septem ber 17, 2013, the trial court indicated it
had “read and considered the motion for re consideration [for] re call of [Walker’s] sentence pursuant to . . . section 1170.126 r eceived on September 5, 2013.” The court continued, “Defe ndant previously submitte d a petition for recall of sentence pursuant to . . . section 1170.126, which was denied w ith prejudice on March 21, 2013. [¶] Defendant has suffered a prior conviction of forcible oral copulation [§ 288a, subd. (a)(c)], which is a disqualifying prior conv iction pursuant to . . . section 667[, subdivision] (e)(2)(C)(iv)(I), ma king Defendant ineligible fo r resentencing pursuant to

4 Although the record indicates otherwise, Walker states he was 16 years old at the time of the alleged offense. He indicates he was dating a 15-year-old girl whose mother did not like him and the girl was “not allowed to speak in court to deny the charges.”

5 It was alleged on April 26, 2013, that Walker was a “suspect in a possible sexual ass[a]ult that occurred in [a] cell on March 29, 2010.” Following an inquiry into the allegation, it was determined to have been unfounded “d ue to lack of evidence.”5 . . . section 1170.126. [¶] Defendant has now filed a motion for reconsideration. He
contends that due to ‘external forces’ he was not able to file a timely motion for reconsideration after [his in itial motion was] denied with prejudice so his ‘default
consideration’ should be excused under the ‘ cause and prejudice’ exception. [¶] If the Defendant wishes to challenge the denial of his petition, hi s remedy is to file a Petition for Writ of Mandate in the Court of Appeal, Second Appellate District . [Citation.] [¶] For the foregoing reasons, the motion for reconsideration is DISMISSED.” 6 On October 16, 2013, Walker filed a timel y notice of appeal from the trial court’s
order.
CONTENTIONS
After examination of the r ecord, appointed appellate coun sel filed an opening brief which raised no issues and requested this c ourt to conduct an independent review of the record. By notice filed Decem ber 10, 2013, the clerk of th is court advised Walker to submit within 30 days any cont entions, grounds of appeal or arguments he wished this
court to consider. On Decembe r 26, 2013, Walker filed a supp lemental brief in which he
asserted this court should order the trial c ourt to grant his motion for reconsideration and hold a hearing pursuant to People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 in which the trial court, pursuant to Welfare and Institutions Code section 1772, could expunge his conviction of sec tion 288a, subdivision (c). He would then be eligible for resentencing pursuant to section 1170.126.

6 Whether a trial court’s denial of a defendant’s section 11 70.126 petition is an appealable order is currently pending before the California Supreme Court. (See People v. Hurtado (2013) 216 Cal.App.4th 941, review gran ted July 31, 2013, S212017 [order is appealable]; Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708 [order must be challenged by pe tition for writ].) Here, however, Walker is appealing from the trial court’s order denying his motion for reconsideration of its denial of his petition filed pursuant to s ection 1170.126. Whethe r Walker should have filed a notice of appeal or a petition for a wr it from the trial court’s initial order denying his petition filed pursuant to sect ion 1170.126, the trial court properly dismissed Walker’s motion for reconsideration of that order.6 Welfare and Institutions Code, secti on 1772 subdivision (a) provides that “[s]ubject to subdivision (b), every person ho norably discharged from control by the Youth Authority Board who has not, during the period of control by the authority, been placed by the authority in a st ate prison shall thereafter be released from all penalties and disabilities resulting from the offense or crim e for which he or she was committed.” Here, however, the record indicates that during the period during which Walker was under the control of the Youth Authority, he wa s sentenced to state prison. In May 1986, Walker was convicted of the felony of possessi on of a controlled substance in violation of Health and Safety Code secti on 11377 for which he was senten ced to 16 months in state prison. He was returned to state prison for pa role violations in Febr uary 1988. Then, in February 1989, Walker suffered a conviction for being a felon in possession of a firearm
in violation of former secti on 12021, subdivision (a). Walker was sentenced to two years in state prison, the term to be served conc urrently with that im posed for his parole violation. In addition, we note subdivision (b) of Welfare and Institutions Code section 1772 states: “Notwithstanding subdivision (a): [¶] . . . [¶] (4) Th e conviction of a person described by subdivision (a) may be used to enhance the punishment for a subsequent
offense.” Under the facts presented and the provis ions of Welfare and Institutions Code section 1772, an additional hearing would not have resulted in the expungement of Walker’s conviction of section 288a, subdivisi on (c). Accordingly, even if the trial court had granted Walker’s motion for reconsidera tion of his petition to recall his sentence and hold a new hearing on the matter, Walker would not have been found eligible for resentencing pursuant to section 1170.126.
REVIEW ON APPEAL
We have examined the entire record an d are satisfied counsel has complied fully with counsel’s responsibilities. ( Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)7 DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.