P. v. Rosales CA5
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
HENRY ALVARADO ROSALES,
Defendant and Appellant.
F074193
(Super. Ct. No. 1240514)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appointed counsel for defendant Henry Alvarado Rosales asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded with a petition for writ of mandate, which we denied on March 9, 2017, on the ground that defendant failed to explain why his appeal is an inadequate remedy. Having reviewed the record and finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On September 25, 2008, in superior court case No. 1240514, defendant was convicted by jury trial of grand theft from the person (Pen. Code, § 487, subd. (c); count 1) and kidnapping (§ 207; count 2). The trial court found defendant suffered two prior serious felony convictions in 1997 and 2007 for robbery pursuant to section 667, subdivision (a) (667(a)) and two prior strike convictions for the same two robberies pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))
On December 18, 2008, at the sentencing hearing, defendant’s younger brother informed the court in unsworn testimony that, in an unknown year, defendant got in a fight with his stepfather. Defendant suffered a head injury and was hospitalized in a coma. His behavior was significantly altered afterward. The brother also explained that in 1997, defendant took the blame for the brother’s crime of stealing a bicycle so the brother would not go to jail. Defendant was arrested. Defendant always took the blame for what the brother did. The brother explained: “[Defendant had] not demonstrated any type of good behavior, you know, in the past, not very well, anyway. But I think that—I think with the proper rehabilitation, mental counseling, some rehab for his alcohol and his drug problems, I think there’s a strong possibility that rehabilitation would be effective for [defendant].” The court then stated: “Maybe we ought to … let’s just officially deal with the strike prior. The—based on the motion by the defense and the lack of opposition by the People and in the interest of justice, as to the [section] 667[, subdivision ](d) prior alleged from 1997, alleged in the information as Docket 131025, I am going to exercise my discretion to strike that prior. So that prior then will be ordered stricken.”
After a discussion between the parties and the trial court, the court sentenced defendant to a total of 17 years four months: the low term of three years, doubled pursuant to the Three Strikes law, on the kidnapping count; one year four months on the grand theft count, to be served consecutively; plus two five-year enhancements pursuant to section 667(a) for the robbery convictions in 1997 and 2007.
On January 28, 2009, defendant filed a notice of appeal in case No. F056980. On appeal, he contended: (1) insufficient evidence supported his conviction for grand theft from the person; (2) the trial court erred in failing to adequately instruct the jury on the offense of grand theft from the person; and (3) section 654 precluded the imposition of consecutive sentences for the kidnapping and grand theft counts. We affirmed the judgment.
On March 3, 2016, the trial court received defendant’s application for resentencing his grand theft conviction pursuant to Proposition 47 (§ 1170.18).
On May 9, 2016, the trial court granted the motion and reduced the grand theft conviction to a misdemeanor pursuant to section 1170.18. The court resentenced defendant to six years on the kidnapping count, plus the two five-year enhancements pursuant to section 667(a), for a total of 16 years.
On July 21, 2016, defendant filed a petition for writ of habeas corpus, arguing his sentence was unauthorized because he was still subjected to two section 667(a) enhancements even though the grand theft count had been reduced to a misdemeanor pursuant to section 1170.18.
On July 21, 2016, the trial court denied the petition on the ground that neither section 667(a) enhancement had been applied to the grand theft count. Instead, both applied to the kidnapping count based on two prior serious robbery convictions defendant had suffered.
On August 10, 2016, defendant filed a notice of appeal in the current case, No. F074193.
On November 15, 2016, defense counsel raised a motion in the trial court for correction of custody credits. The court ordered the correction on November 21, 2016, and filed an amended abstract of judgment.
On February 28, 2017, defendant filed the above mentioned petition for writ of mandate with this court, arguing that his 1997 robbery conviction itself must be vacated because a third party (his brother) admitted guilt of that crime and the conviction now forms the basis of an illegal sentence. He explained that he pled guilty to the robbery charge because he did not think his brother, the actual perpetrator, could survive in prison.
On March 9, 2017, we denied defendant’s petition for writ of mandate on the ground that defendant failed to explain why his appeal is an inadequate remedy.
Our review of the record discloses no arguable issues on appeal. The issue defendant raised in his petition for writ of mandate challenges the sentence imposed on December 18, 2008, in that he argues the trial court in 2008 should have decided to not only dismiss the prior strike conviction allegation regarding the 1997 robbery, but also vacate the 1997 robbery conviction itself (or perhaps at least not base a section 667(a) enhancement on it). Defendant did not raise this issue when he appealed in 2009 in case No. F056980. We cannot entertain this issue here; the time for appeal from the 2008 sentencing has passed.
DISPOSITION
The judgment is affirmed.
Description | Appointed counsel for defendant Henry Alvarado Rosales asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded with a petition for writ of mandate, which we denied on March 9, 2017, on the ground that defendant failed to explain why his appeal is an inadequate remedy. Having reviewed the record and finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. |
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