P. v.
Filed 10/1/13 P. v. Linares CA5
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IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. PABLO GARCIA LINARES, Defendant and Appellant. | F065191 (Super. Ct. Nos. 00-52969-2 & VHC254701) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
County. Lloyd L. Hicks,
Judge.
Mark J.
Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the State Attorney General, Sacramento, California,
for Plaintiff and Respondent.
-ooOoo-
On July 11, 2011, appellant Pablo Garcia
Linares filed a petition for writ of
habeas corpus in the Tulare County Superior Court. In his petition, Linares
represented that he was sentenced, on May
18, 2000, to 28 years to life in prison under the “Three Strikesâ€
law for a current offense of auto theft (Veh. Code, § 10851) with two
prior strike convictions. Linares
alleged that his 1995 robbery conviction did not qualify as a strike because
there was no gun use enhancement; hence, his current sentence was
unauthorized. Linares
provided a copy of the abstract of judgment in his 1995 case; it showed he pled
to one count of second degree robbery with no firearm enhancement.
On July 18, 2011, the petition was
summarily denied. The trial court found Linares
failed to state a prima facie case for relief, in that, under Penal Code
section 1192.7, subdivision (c)(19), robbery of either degree constitutes
a serious felony and, therefore, a strike; the issue could have been raised on
appeal; and Linares delayed filing
the petition unreasonably and without legitimate excuse.
On August 26, 2011, Linares
filed a petition for writ of habeas corpus with this court, reiterating his
allegations.
title="">[1] On September
8, 2011, his petition was summarily denied by order.
On or about
May 14, 2012, Linares
submitted a petition for writ of error coram
nobis to the Tulare County Superior
Court, in which he reiterated the allegations and claims made in his earlier
habeas petition and asked to be resentenced.
On May 23, 2012, the
petition was denied on the same grounds as the habeas petition. Linares
filed a timely notice of appeal.
The facts
underlying Linares’s current
conviction are not contained in the record on appeal. According to Linares,
his 1995 conviction resulted when he was originally charged with carjacking,
but was offered a plea bargain of second degree robbery with no gun use
enhancement.
APPELLATE COURT REVIEW
Linares’s
appointed appellate counsel has filed an opening brief that summarizes the
pertinent facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the
declaration of appellate counsel, stating that Linares
was advised he could file his own brief with this court. By letter dated October 2, 2012, we invited Linares
to submit additional briefing. To date,
he has not done so, although he did ask this court to file on his behalf a
petition for recall of sentence under Penal Code section 1170.126. We declined.
After
concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Kane, J. and Detjen, J.
name="_ftn2" title="">[1] Pursuant
to Evidence Code sections 452, subdivision (d) and 459, subdivision (a),
we take judicial notice of our record in case No. F063151,
chronology is complete; it is not a matter “of substantial consequence to the
determination of†the present action.
(See Evid. Code, § 459, subd. (c).)
