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Filed 11/21/13 P. v. Aguayo CA4/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

GABRIEL AGUAYO, 

 Defendant and Appellant. 

 E058421 

 (Super.Ct.No. FSB026475) 

 OPINION 

 APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, 

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. 

 Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 No appearance for Plaintiff and Respondent. 
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 Defendant and appellant Gabriel Aguayo appeals from an order denying his 

petition for recall of his indeterminate life term under Penal Code section 1170.126, 

subdivision (f).1 We will affirm the order. 

I 

PROCEDURAL BACKGROUND 

On December 29, 2000, a jury found defendant guilty of one count of residential 

burglary (§ 459, count 2); two counts of assault with a firearm (§ 245, subd. (a)(2), counts 

3 & 5); and one count of possession of a firearm by a felon (§ 12021, subd. (a), count 6).2 

In addition, the jury found true the special allegation that defendant personally used a 

firearm within the meaning of section 12022.5, subdivision (a)(1), in the commission of 

the assaults. In a bifurcated bench trial, the trial court found true the special allegations 

that defendant had suffered three prior serious or violent felony convictions (§§ 667, 

subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, 

subd. (a)(1)), and three prior prison terms (§ 667.5, subd. (b)). On September 11, 2001, 

after granting defendant’s motion for a new trial on counts 2 and 3, and denying 

 1 All future statutory references are to the Penal Code unless otherwise stated. 

2 The jury found defendant not guilty of two counts of robbery. (§ 211, counts 1 

& 4.) The jury also found not true the special allegations that in the commission of the 

robbery in count 1 and the residential burglary defendant had personally used a firearm, 

to wit, a rifle, and that in the commission of the robbery in count 4 defendant had 

personally and intentionally discharged a firearm, to wit, a rifle. 
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defendant’s motion for a new trial on counts 5 and 6, the trial court sentenced defendant 

to a total term of 42 years to life in state prison under the three strikes law.3 

Defendant subsequently appealed to this court. Defendant’s claims were rejected 

and the judgment was affirmed. (People v. Aguayo (Aug. 23, 2002, E030343) [nonpub. 

opn.].) Defendant later sought federal habeas relief. The federal district court denied 

defendant’s request for relief. (Aguayo v. Ollison (C.D. Cal., Mar. 20, 2008, No. ED CV 

07-607 RGK (SH)) 2008 U.S. Dist. Lexis 25373.) 

On November 6, 2012, the electorate passed Proposition 36, also known as the 

Three Strikes Reform Act. Among other things, this ballot measure enacted section 

1170.126, which permits persons currently serving an indeterminate life term under the 

three strikes law to file a petition in the sentencing court, seeking to be resentenced to a 

determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court 

determines, in its discretion, that the defendant meets the criteria of section 1170.126, 

subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).) 

Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is 

eligible for resentencing if he or she is serving an indeterminate term of imprisonment 

imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of 

 3 Defendant’s sentence consisted of the following: 25 years to life for the assault 

with a firearm conviction in count 5, plus 10 years for the personal firearm use finding 

attached to count 5; five years for one of the prior serious felony convictions, plus two 

one-year terms for two prior prison term findings; and with respect to the possession of a 

firearm by a felon (count 6), a stayed sentence pursuant to section 654. The trial court 

struck one of the prior serious felony convictions and one of the prior prison term 

findings. The trial court subsequently granted the prosecution’s motion to dismiss counts 

2 and 3. 
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Section 1170.12 “for a 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.” (§ 1170.126, subd. (e)(1).) 

On February 19, 2013, defendant filed in pro. per. a petition for resentencing 

under section 1170.126. The trial court denied the petition on March 21, 2013, because 

defendant’s current commitment offense for assault with a firearm, with a special 

allegation for use of a firearm, is a serious and/or violent felony under section 667, 

subdivision (e)(2)(C)(iii), which made defendant ineligible for resentencing under section 

1170.126, subdivision (e)(2). Defendant filed a timely notice of appeal. 

II 

DISCUSSION 

We appointed counsel to represent defendant on appeal. After examination of the 

record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a 

summary of the facts and potential arguable issues, and requesting this court conduct an 

independent review of the record. 

 We offered defendant an opportunity to file a personal supplemental brief, but he 

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we 

have independently reviewed the record for potential error and find no arguable issues. 

Defendant’s current commitment conviction for assault with a firearm with an 

enhancement allegation that defendant used a firearm in the commission of the assault is 
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a serious and/or violent felony within the meaning of section 667, subdivision 

(e)(2)(C)(iii). 

III 

DISPOSITION 

 The order is affirmed. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

RAMIREZ 

 P. J. 

We concur: 

RICHLI 

 J. 

CODRINGTON 

 J.