PEOPLE v. BURNS

No. F073547.

THE PEOPLE, Plaintiff and Respondent, v. MONROE WALTER BURNS, Defendant and Appellant.

Court of Appeals of California, Fifth District.


Attorney(s) appearing for the Case

Sylvia W. Beckham , under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

THE COURT*

Appointed counsel for defendant Monroe Walter Burns 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. That letter was returned, labeled "Return to Sender/Unable to Forward/Out to Court Since 7/25. No forwarding address found." On review, we find no arguable issues.

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 October 8, 1999, a security officer at a hardware store in Modesto saw defendant put a lockset—a metal door handle assembly in some sort of plastic or cardboard packaging—down the front of his pants and leave the store without paying. The officer followed defendant outside, identified himself as security, grabbed defendant's arm, and asked for the merchandise back. Defendant denied having taken anything. The officer pointed at, or reached toward, defendant's pants. In a matter of a few seconds, defendant pulled the lockset from his pants, threw it in an overhand motion at the officer's head, and took off running through the parking lot. The lockset struck the officer above the left eyebrow, causing a minor cut that bled but did not require medical attention. The officer and his supervisor chased down and detained defendant until police arrived.1

On August 8, 2000, defendant was convicted by jury trial of petty theft with a prior (Pen. Code,2 §§ 484, subd. (a), 666; count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The trial court found he had suffered prior strike convictions for robbery (§ 211) and kidnapping (§ 207) within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)).

On September 7, 2001, the trial court sentenced defendant to two concurrent 25-year-to-life terms on counts 1 and 3, plus a one-year prior prison term enhancement.

On November 9, 2012, defendant petitioned the trial court for recall of his sentence pursuant to section 1170.126. On March 6, 2014, the trial court denied the petition, finding defendant ineligible for resentencing because of his assault with a deadly weapon conviction. Defendant appealed. In our September 2, 2015 opinion (case No. F069147), we concluded defendant was eligible for resentencing on the petty theft count only, and we reversed the order as to that count.

On February 2, 2015, defendant filed a petition for writ of habeas corpus, contending his Three Strikes sentence was unauthorized because the trial court was required to dismiss one of his prior strike convictions on the ground that the robbery and kidnapping prior convictions were based on the same act.

On February 4, 2015, the trial court denied the petition, finding that the two prior strike convictions were based on separate acts against the same victim.

On March 15, 2016, the trial court on remand recognized that defendant was also eligible for resentencing under the recently enacted Proposition 47 (§ 1170.18) on the petty theft count. The court designated the conviction a misdemeanor and sentenced defendant to time served. The sentence on count 3 remained unchanged.

On April 6, 2016, defendant filed a notice of appeal, stating he would like to appeal his sentence.

After a review of the entire record, we see no arguable error on appeal. Defendant's offense in count 3 was not eligible for resentencing.

DISPOSITION

The judgment and orders of the trial court are affirmed.

FootNotes


* Before Gomes, Acting P.J., Meehan, J., and, Black, J.

dagger; Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article IV, section 6 of the California Constitution.

1. We take judicial notice of our prior nonpublished opinions: People v. Burns (Aug. 8, 2003, F039075) and People v. Burns (Sept. 2, 2015, F069147).
2. All statutory references are to the Penal Code.

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