P. v. Artola
Filed 11/14/13 P. v. Artola CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Eddy Artola,
Defendant and Appellant.
B249561
(Los Angeles
County
Super. Ct.
No. BA097414)
APPEAL from
an order of the Superior Court
of
County, William C. Ryan, Judge. Affirmed.
California
Appellate Project, Jonathan B. Steiner and Suzan E. Hier, under appointment by the Court of
Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
In
January 1966 defendant and appellant, Eddy Artola, was sentenced to a Three-Strikes
term of 30 years to life in prison based upon his conviction of the serious
and/or violent felony of second degree robbery
(Pen. Code, § 211)
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and his prior convictions of the serious and/or violent felony of second degree
robbery (§ 211) and the serious felony of attempted robbery (§§ 664, 211). He appeals from the trial court’s denial of
his post-judgment petition to recall his life sentence and resentence him to a
determinate term pursuant to section 1170.126.
FACTUAL AND
PROCEDURAL BACKGROUND
Following
a jury trial held on December 22,
1995, Artola was found guilty of second degree robbery (§ 211). The trial court then found Artola previously
had been convicted of the felonies of second degree robbery (§ 211) and
attempted robbery (§§ 664, 211).
The trial court also determined Artola had served a prison term after
having been convicted of the sale of marijuana in 1987.
The
probation report filed in the matter indicated Artola had been convicted of,
then granted probation for, reckless driving in 1983, driving under the
influence in 1986, the sale of marijuana in 1987 and exhibiting a deadly weapon
in 1988. In 1989, Artola was found
guilty of being under the influence of a controlled substance and sentenced to
state prison. He was paroled in January
1990. Later that year, Artola was convicted
of armed robbery and attempted armed robbery and was sentenced to six years in
prison. With regard to a 1995 conviction
of robbery, the probation officer wrote that “ ‘[c]ircumstances of [the]
present offense and [the] prior robbery case, in this [probation] officer’s
judgment, have a common underlying theme that can only be characterized as “bizarre.†It appears [Artola’s] behavior, in both
cases, was alcohol or drug-induced.
Notwithstanding the reason for the defendant’s behavior, he represents a
significant threat to the community.’ â€
On January
31, 1996, the trial court sentenced Artola pursuant to the Three Strikes law to
25 years to life with the possibility of parole for his conviction of robbery
and imposed a five-year enhancement for his conviction of a serious felony
pursuant to section 667, subdivision (a)(1), for a total sentence of 30 years
to life in state prison. Artola appealed
and, in People v. Artola,
matter for reconsideration of the trial court’s imposition of sentence in view
of the court’s decision in People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, pages 529 to 530. On remand, the trial court declined to strike
either of Artola’s prior convictions. Artola then appealed from the
resentencing. In People v. Artola, supra,
B121445, this court determined “[i]n light of the nature and circumstances of
Artola’s present felony of robbery, his prior convictions of robbery, and also
in light of the particulars of his background, character, and prospects, which
were not positive, the trial court committed no abuse of discretion in
concluding that Artola ‘cannot be deemed outside the spirit of the Three
Strikes law in any part, and hence may not be treated as though he had not
previously been convicted of those serious and/or violent felonies.’ (People
v. Williams (1998) 17 Cal.4th 148, 161, 163.)†This court, accordingly, affirmed the trial
court’s judgment.
On February 8, 2013, Artola, acting in
propria persona, filed in the Los Angeles Superior Court a “Petition for a
Recall of Sentence and Resentencing Pursuant to . . . Section
1170.126.†He asserted he met the
criteria “for a recall of sentence, in accordance with . . . [s]ection
1170.126, subdivision (e), as that statu[t]e has been added by Prop[osition]
36†in that, on December 22, 1975, the date the jury found him guilty of second
degree robbery, the crime was not considered to be a “serious†or “violent†felony.
In addition, he argued “a recall of
[his] sentence and resentencing would not pose an unreasonable risk of danger
to public safety.â€
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In a
Memorandum of Decision filed March 26,
2013, the trial court denied Artola’s motion with prejudice. With regard to Artola’s argument the offense
of which he had been found guilty, second degree robbery, had not been
considered a “serious†or “violent†felony on December 22, 1995, the date of
his conviction of the offense, the trial court noted that pursuant to section
667, subdivision (h), “all references to existing statutes in subdivisions (c)
to (g), the Three Strikes law, are to statu[t]es as they existed on November 7,
2012.†On that date, subdivision (c) of
section 667.5 provided that “ ‘violent felony’ shall mean any of the
following: [¶] . . . [¶] (9) Any robbery.†In addition, section 1192.7, subdivision (c)
indicated that “ ‘serious felony’ means any of the following: [¶] . . . (19) robbery or bank robbery; . . .
[and] (39) any attempt to commit a crime listed in this subdivision other
than an assault[.]†Since subdivision
(e) of section 1170.126 provides that an inmate is eligible for resentencing if
he or she is serving an indeterminate term of life imprisonment for a
conviction of a felony or felonies which are not defined as serious and/or violent felonies by subdivision (c)
of section 667.5 or subdivision (c) of section 1192.7, the trial court
determined Artola was ineligible for resentencing.
Artola
filed a timely notice of appeal from
the trial court’s order and a request for the appointment of appellate counsel
on May 9, 2013.
CONTENTIONS
After
examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent
review of the record. By notice filed August 23, 2013, the clerk of this
court advised Artola to submit within 30 days any contentions, grounds of
appeal or arguments he wished this court to consider. Artola filed a supplemental brief on September 13, 2013.
In his
brief, Artola first asserted his prior convictions for robbery and attempted
robbery should have constituted a single strike. He indicates both convictions stemmed from a
single incident which occurred on September
10, 1990 and the trial court’s failure to strike one of them
amounted to an abuse of discretion. This
court, however, had already considered the contention and rejected it. In its opinion filed in People v. Artola, supra, B099782,
this court stated: “Section 667,
subdivision (d), defines ‘a prior conviction of a felony’ for . . . purposes of
the Three Strikes law. Nothing in that
subdivision restricts prior convictions to charges brought and tried
separately. [Citation.] Because the Three Strikes law adopts a
comparable restriction with respect to current charges in section 667,
subdivision (c)(6), the omission of that restriction in the definition of a
prior serious or violent felony conviction must be seen as intentional. [Citation.]
Thus, the Three Strikes law does not require otherwise qualifying prior
convictions to be based on charges brought and tried separately.â€
Artola next
contended the trial court erred when it failed to strike one of his prior
convictions in the interests of justice.
The contention is without merit.
In its prior opinion in this matter in People v. Artola, supra,
B121445, this court noted the trial court had denied Artola’s motion to strike
one or both of his 1990 prior convictions because, although they had been part
of a single incident, Artola had used a firearm and had been sentenced to six
years in state prison for the offenses. Moreover,
the trial court had “ ‘not see[n] a mitigation sufficient to strike a
prior.’ †After finding “no abuse
of the trial court’s discretion in this case,†this court indicated: “Although a trial court must state its
reasons in support of an order dismissing a prior conviction in the interests
of justice (§ 1385, subd. (a)), there is no similar requirement that a trial
court explain its decision not to exercise its power to dismiss or strike [a
prior]. [Citation.] . . . The record reveals the trial court heard the
argument of counsel, indicated it was aware of its discretion to strike the
prior convictions, and then concluded Artola was the type of individual
targeted by the Three Strikes law and . . . it would be inappropriate
to impose anything other than a third strike term in this case. . . . [¶] In
light of the nature and circumstances of Artola’s present felony of robbery,
his prior conviction[] of robbery, and also in light of the particulars of his
background, character, and prospects, which were not positive, the trial court
committed no abuse of discretion in concluding . . . Artola ‘[could
not] be deemed outside the spirit of the Three Strikes law in any part, and
hence [could] not be treated as though he had not previously been convicted of
those serious and/or violent felonies.’ (
148, 161, 163.)â€
In his
brief, Artola also requested this court to look at his “record of self
rehabilitation†while serving his sentence in prison as a reason for finding
the trial court abused its discretion when it denied his motion to strike one
or both of his priors. However, as indicated
above, subdivision (f) of section 1170.126 provides that “[u]pon receiving a
petition for recall of sentence under this section, the court shall determine
whether the petitioner satisfies the criteria in subdivision (e)†in that he or
she is serving an indeterminate sentence for a crime considered to be neither
serious nor violent. If the petitioner
satisfies the criteria, he or she shall be resentenced unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable
risk of danger to public safety. Subdivision (g) of Section 1170.126 provides
in relevant part: “In exercising its
discretion in subdivision (f), the court may consider: [¶] . . . [¶] (2) The
petitioner’s disciplinary record and record of rehabilitation while
incarcerated . . . .†However, here
Artola does not satisfy the criteria of section 1170.126, subdivision (e). He is serving an indeterminate sentence of
life imprisonment for felonies defined as “serious†and/or “violent.†Thus, although Artola has provided a number of
documents indicating he has, during his incarceration, completed programs in
education, vocational education, religious education, anger management and
prevention techniques with regard to his substance abuse, the trial court was under
no obligation to consider them. Since Artola
does not satisfy the requirements of subdivision (e), he is ineligible for
resentencing pursuant to section 1170.126.
REVIEW ON APPEAL
We have examined the entire
record and 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.)
DISPOSITION
The
trial court’s order is affirmed.
KLEIN, P. J.
We concur:
CROSKEY, J.
ALDRICH, J.
further statutory references are to the Penal Code unless otherwise indicated.
[2] Section
1170.126 provides in relevant part: “(a) The
resentencing provisions under this section and related statutes are intended to
apply exclusively to persons presently serving an indeterminate term of
imprisonment pursuant to [the Three Strikes law], whose sentence under this act
would not have been an indeterminate life sentence. [¶]
(b) Any person serving an indeterminate term of life imprisonment
imposed pursuant to [the Three Strikes law] upon conviction, whether by trial
or plea, 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 [sections] have been
amended by the act that added this section.â€
The act which added this section, Proposition 36, was approved at the
November 6, 2012 election and became effective the following day.
