P. v. Good
Filed 5/21/08 P. v. Good 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RAVON GOOD, Defendant and Appellant. | B198893 (Los Angeles County Super. Ct. No. BA172780) |
APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed.
Ravon Good, in pro. per.; and Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On January 26, 1999, a jury found Ravon Good (Good) guilty of unlawfully selling cocaine base, found true the allegations he previously had been convicted of three serious or violent felonies within the meaning of the Three Strikes law and found true the allegation he had served a prior prison term. On March 30, 1999, the trial court sentenced Good to 26 years to life in prison. The judgment was affirmed on appeal in Case No. B132252. On February 22, 2007, Good filed in the superior court a Petition for Modification of Sentence per Cunningham. The trial court denied the petition on March 12, 2007 and on April 30, 2007 Good filed a timely notice of appeal from the trial courts order.[1] We affirm the trial courts ruling.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
The facts are not in dispute. On August 11, 1998, Good sold $18 worth of rock cocaine to an undercover Los Angeles police officer.
2. Procedural history.
Following a jury trial, Good was found guilty of unlawfully selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a). The jury found true the allegations Good previously had been convicted of three serious or violent felonies within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the Three Strikes law,[2]and that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
At proceedings held on March 30, 1999, the trial court declined to strike any of Goods prior convictions and sentenced him to a term of 26 years to life in prison, consisting of 25 years to life for his conviction of selling cocaine base and one year for the prior prison term. Good appealed and the judgment was affirmed by this court in Case No. B132252.[3]
Acting in propria persona, on February 22, 2007, Good filed in the superior court a Petition for Modification of Sentence per Cunningham. The trial court denied the petition on March 12, 2007 and Good timely filed a notice of appeal on April 30, 2007.
This court appointed counsel to represent Good on appeal on June 26, 2007. Counsel filed in this court an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 443, which raised no issues and requested this court to conduct an independent review of the record.
By notice filed October 30, 2007, the clerk of this court advised Good to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. After receiving numerous continuances, Good filed an Appellants Supplemental Brief on March 30, 2008.
CONTENTIONS
Good asserts his sentence to the upper term of 25 years to life violates the mandates of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and that the district attorneys Three Strikes policy violated his right to equal protection of the law.
DISCUSSION
1. Cunningham.
In Cunningham, the court, relying on its decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296, determined the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860], italics added.)
Initially, Good was sentenced, not under the determinant sentencing scheme specifically addressed in Cunningham, but pursuant to the Three Strikes law, a sentencing scheme based on the number and kind of prior convictions suffered by a defendant. Moreover, in Goods case, it was the jury, not the trial court, who determined he had suffered the prior convictions. Good was sentenced to a term of 26 years to life based on his prior convictions, as found true by the jury. There was no Cunningham error.
2. The district attorneys Three Strikes policy.
Good has attached as an exhibit to his petition a copy of what appears to be an internal memorandum regarding how Three Strikes cases are to be charged and litigated. A review of the document reveals no violations of the equal protection clause.
APPELLATE REVIEW
We have examined the entire record and are satisfied Goods counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The trial courts order denying the petition for modification of sentence is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
We concur:
KLEIN, P. J.
ALDRICH, J.
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[1] In her opening brief, counsel appointed to represent Good characterizes the appeal as from a denial by the superior court of a petition for writ of habeas corpus. However, a trial courts denial of a petition for writ of habeas corpus is not an appealable order. Although the Legislature has provided that the People may appeal from the granting of habeas corpus relief ([Pen. Code,] 1506), [it] has not provided that remedy for a defendant. The California Supreme Court has, on more than one occasion, stated that the defendant may not appeal denial of a petition for writ of habeas corpus. (People v. Gallardo (2000) 77 Cal.App.4th 971, 986.) Here, since the trial court did not characterize Goods petition as one for a writ of habeas corpus, but as one for Modification of Sentence per Cunningham, we consider the appeal to be from an order made after judgment, affecting the substantial rights of the party. (Pen. Code, 1237, subd. (b).)
[2] The jury found Good had previously committed attempted murder (Pen. Code, 664/187, subd. (a)), robbery (Pen. Code, 211) and attempted robbery (Pen. Code, 664/211).
[3] Pursuant to appellate counsels request, we take judicial notice of the record in Case No. B132252. (Evid. Code, 452, subd. (d).)
