Filed 10/2 8 /15 P. v. Morrison CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DON MORRIS ON,

Defendant and Appellant. B260464

(Los Angeles County Super. Ct. No. NA030252)

APPEAL from a n order by the Superior Court of the County of Los Angeles,
Richard Romero, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executor Director, Richard B.
Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Not appearance for Plaintiff and Respondent.2 INTRODUCTION
Defendant and appellant Don Morrison (defendant) appealed an order denying
with prejudice his petition for recall of sentence. On appeal, a ppointed counsel for

defendant filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d
436 requesting that this court conduct an independent review of the record to determi ne if
there are any issues which if resolved in defendant’s favor would require reversal or
modification of the judgment or appealable order. On September 8 , 2015

, we g a ve notice

to defendant that his counsel had failed to find any arguable issues and tha t defendant had
30 days within which to submit by brief or letter any grounds of appeal, contentions, or
arguments he wished this court to consider. Defendant filed a brief in which he appears

to contend that numerous errors occurred in the present case, in which case he was
convicted in 1997, and in his prior case (Case No. A634965) , in which case he suffered

convictions in 1986; and the trial court erred in denying his petition for recall of sentence
because the trial court relied on a prior conviction ( for forcible rape) which defendant did

not suffer , although the jury erroneously found it to be true

. 1 We have reviewed the

record and affirm the order.

PROCEDURAL BACKGROUND 2

In 1997, defendant was convicted of possession of a controlled substance (H ealth

& Saf . Code, § 11350, subd. (a) )

. Defendant was sentenced under the “ Three Strikes ”

l aw to a term of 25 years to life b ecause he was also found to have prior “strike”

convictions (§§ 667, 1170.12)

.

1 The Abstract of Judgment in the prior case (case number A634965) states that in 1 9 86, defendant was convicted of, inter alia, attempted forcible rape pursuant to section 664 and former section 261(2) (now renumbered as s ection 261, subdivision (a)(2) ( Pe ople v. Iniguez (1994) 7 Cal. 4th 847 , 856, fn. 4) )

.

2 Because t his appeal is from the denial of a statutory, post

- judgment motion

, we do not include a statement of facts regarding count for which the defendant was convicted.3

On February 28, 2014, f

ollowing the November, 20 12, passage of Proposition 36,

defendant filed a peti tion for recall of his Three S trike s sentence pu rsuant to section

1170.126

. 3 The trial court denied the petition on the grounds that defendant had a prio r conviction for forcible rape that disqualified him from eligibility for recall and
resentencing.
Following record correction proceedings, the trial court determined that the
abstract of judgment in th e prior case provided that defendant did not have a prior
conviction for rape, but had prior convicti ons for

, inter alia, attempted rape and assault

with intent to commit rape

. Defendant filed a timely notice of appeal of the order
denying his petition for recall of sentence.

DISCUSSION

Defendant contends that there were numerous errors in the presen t case, in which

case he was convicted in 1997, and in his prior case. Defendant appealed the trial court’s
order denying “with prejudice of his petition for recall of sentence

. . . that occurred on
October 24, 2014 in chambers.” We therefore do not add ress defendant’s contentions of
purported errors that occurred in the trial of and sentencing in the present and prior cases

. Defendant also contends that the trial court erred in denying his petition for recall

of sentence because the trial court relied on a prior conviction (for forcible rape) which

defendant did not suffer. A n appealed judgment or order correct on any theory will be

affirmed, however, even when the trial court ’ s reasoning may have been erroneous.

( Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887,

906

- 907; Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 663

- 664.)

3 The record does not cont ain a copy of defendant’s petition for recall of his third “strike” sentence, and the trial court has been unable to locate a copy of it. Under the circumstances, the record is adequate to address the issue of whether the trial court erred in denying defe ndant’s petition despite the record not containing the petition

.4

Section 1170.126 provides in relevant part: “(b) Any person serving an
indeterminate term of life imprisonment imposed pur suant to [the ‘Three Strikes’ law]
upon conviction

. . . of a felony or felonies that are not defined as serious and/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

. . . before the trial court that entered the judgment of
conviction in his or her case, to request resentencing in accordance with the provisions of

subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes

have been amende d by the act that added this section. [¶]

. . . [¶] (e) An inmate is
eligi ble for resentencing if: [¶]

. . . [¶] (3) The inmate has no prior convictions for any of
the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivisio n (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c)

of Section 1170.12. ”
As defendant’s counsel concedes, b ecause d efendant ’s prior conviction for assault
with intent to commit rape come s within s ections 667, subdi vision (e)(2)(C)(iv)(I) and

1170.12(c)(2)(C)(iv)(I) , he is rendered ineligible for recall of sentence pursuant to section

1170.126. Defendant ’ s petition was properly denied.
In addition to reviewing and addressing the matters raised in defendant’s brief , we have made an independent examination of the entire record to determine if there are any
other arguable issues on appeal. Based on that review, we have determined that there are
no other arguable issues on appeal. We are therefore satisfied that defe ndant ’ s counsel
has fully complied with his responsibilities under People v. Wende

, supra , 25 Cal.3d 436

.5 DISPOSITION

We affirm the order.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

BAKER, J.