P. v. Pulido

 

 

 

 

 

 

 

 

 

 

 

Filed 11/8/13  P. v. Pulido CA2/2

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 TWO

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   VICTOR PULIDO,               Defendant and Appellant.

B247715         (Los Angeles County       Super. Ct. No. SA026301)

 

 

THE COURT:href="#_ftn1" name="_ftnref1" title="">*

            Defendant
Victor Pulido appeals following the February 26, 2013 denial of his petition to recall his
sentence under Penal Code section 1170.126.href="#_ftn2" name="_ftnref2" title="">>[1]>
 Defendant is currently serving a sentence of 50 years
to life plus 10 years.

            We appointed
counsel to represent defendant on this
appeal.  On June 10,
2013,
counsel filed an “opening brief” in which she stated that she had failed to
find any arguable issues.  On June
11, 2013, we
informed defendant that he had 30 days in which to file a supplemental
brief containing any issues he wished this court to consider.  On July 3, 2013, we granted defendant an extension
of time.  On July 22,
2013,
defendant filed a supplemental brief
in which he argues that the two strike priors that were used to sentence him as
a three-strike defendant constituted a breach of contract.

            The record
shows that, on March 12, 1997, defendant was convicted of six
counts of residential burglary.  The
transcript of defendant’s sentencing hearing reveals that he had been found to
have two strikes for two prior convictions of first degree burglary, which were
also serious felonies within the meaning of section 667, subdivision (a).  The record contains no reporter’s transcript
or clerk’s transcript from defendant’s previous trials, plea proceedings, or
sentencing proceedings regarding the two strike convictions, which occurred in
1991 and 1993.

With respect to the 1997 burglaries,
the trial court sentenced defendant to consecutive sentences of 25 years to
life on each of two burglary counts and 10 consecutive years for the two enhancements
under section 667, subdivision (a).  In
the remaining four burglary counts, the trial court struck one of defendant’s
prior strike convictions and imposed determinate sentences, which were stayed.  This court affirmed the judgment on February
13, 1998, in
case No. B113344 (unpublished opinion).

Defendant cites People v. Jerry Z. (2011)
201 Cal.App.4th 296, review granted March 14, 2012, S199289, for the proposition that
deeming his two prior convictions as strikes constituted a href="http://www.fearnotlaw.com/">breach of contract.  Since review has been granted, that case is
no longer good law.href="#_ftn3"
name="_ftnref3" title="">>[2] 
Defendant asserts that at the time of the two “pleadings/deals” his
“understanding of law to accept the deals, inherently implied, was that any
future enhancement under [section] 667 would be of five or one year; adding a
strike to the pleas modified significantly the bargain, rendering his present
sentence unconstitutional.”

Assuming defendant’s prior convictions
were obtained as a result of a plea bargain, defendant’s claim fails.  The Supreme Court recently addressed the
issue of whether “the law in effect at the time of a plea agreement binds the
parties, or (b) that the terms of a plea agreement may be affected by changes
in law.”  (Doe v. Harris (2013) 57 Cal.4th 64, 66 (Doe).)  The Supreme Court
cited with approval the rule set forth in People
v. Gipson (2004) 117 Cal.App.4th 1065 (Gipson),
in which the Court applied a retroactive change in recidivism sentencing under
the Three Strikes law despite the existence of a plea agreement under prior
law.  According to Gipson, “‘When persons enter into a contract or transaction
creating a relationship infused with a substantial public interest, subject to
plenary control by the state, such contract or transaction is deemed to
incorporate and contemplate not only the existing law but the reserve power of
the state to amend the law or enact additional laws for the public good and in
pursuance of public policy . . . .’”  (Doe,
supra, at p. 70, quoting >In re Marriage of Walton (1972) 28
Cal.App.3d 108, 112; see Gipson, >supra, at p. 1070.) 

>Doe further
stated, “Gipson explains that the
parties to a plea agreement—an agreement unquestionably infused with a substantial
public interest and subject to the plenary control of the state—are deemed to
know and understand that the state, again subject to the limitations imposed by
the federal and state Constitutions, may enact laws that will affect the
consequences attending the conviction entered upon the plea.”  (Doe,
supra, at p. 70.)  In addition, “prosecutorial and judicial
silence on the possibility the Legislature might amend a statutory consequence
of a conviction should not ordinarily be interpreted to be an implied promise
that the defendant will not be subject to the amended law.”  (Id. at
p. 71.)

The court in Doe noted that, “it is not impossible the parties to a particular
plea bargain might affirmatively agree or implicitly understand the
consequences of a plea will remain fixed despite amendments to the relevant law.”  This inquiry, however, “presents factual
issues that generally require an analysis of the representations made and other
circumstances specific to the individual case.” (Doe, supra, 57 Cal.4th at
p. 71.)  As we have stated, the record
contains no facts regarding the prior proceedings in which defendant was
convicted of the strike offenses. 

Accordingly, as in >Gipson, “[t]he 1994 amendment to section
667 did not affect [defendant’s] plea bargain; it did not create or destroy any
substantive rights defendant had in the plea bargain.  Subsequent to the plea bargain, the
Legislature amended the law; defendant committed another crime; defendant
became subject to the penalty described in the amended statute.  The increased penalty in the current case had
nothing to do with the previous case except that the existence of the previous
case brought defendant within the description of persons eligible for” an
enhanced sentence under the Three Strikes law. 
(Gipson, supra, 117 Cal.App.4th at p. 1070.) 


Moreover, although defendant’s 1991 and
1993 strike convictions were sustained before implementation of the Three
Strikes law, courts have consistently held that utilizing such a prior
conviction to sentence under the Three Strikes law does not violate due process
and ex post facto
considerations.  (See, e.g., >People v. Gray (1998) 66 Cal.App.4th
973, 995; People v. Brady (1995) 34
Cal.App.4th 65, 71–72.) 

We have examined the
entire record, and we are satisfied that defendant’s attorney has fully
complied with her responsibilities and that no arguable issues exist.  (People
v. Wende (1979) 25 Cal.3d 436, 441.)

The order denying
defendant’s petition is affirmed.