People v. Lewis CA4/2
Opinion
Filed 12/16/21 P. v. Lewis CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076729
v. (Super.Ct.Nos. INF1700844, INF1702028 & RIC1902112) RONALD REED LEWIS, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gregory J. Olson, Judge.
Affirmed.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Ronald Reed Lewis appeals from a resentencing order in
which a trial court resentenced him to an aggregate term of 13 years in state prison in case
1 Nos. INF1700844 and INF1702028 following the grant of a petition for writ of habeas
corpus. We affirm
PROCEDURAL BACKGROUND
On May 29, 2018, the trial court conducted proceedings in case Nos. INF1700844
and INF1702028. It considered a Romero1 motion filed by defendant. Defendant had two
prior strike convictions, and the court decided to dismiss one of them. He then entered a
plea agreement in case No. INF1700844 and pled guilty to robbery (Pen. Code,2 § 211),
misdemeanor possession of methamphetamine (Health & Saf. Code, § 113773),
misdemeanor possession of heroin (Health & Saf. Code, § 11350), and misdemeanor
possession of drug paraphernalia (Health & Saf. Code, § 11364). Defendant also admitted
that he had a prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12,
subd. (c)(1)) and two prior serious felony convictions (Pen. Code, § 667, subd. (a)), and that
he served seven prior prison terms (Pen. Code, § 667.5, subd. (b)).
Defendant then entered a plea agreement in case No. INF1702028 and pled guilty to
assault with a weapon. (§ 245, subd. (a)(1).) He again admitted the prior strike and prison
priors.
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2 All further statutory references will be to the Penal Code unless otherwise indicated.
3 The court misspoke at the hearing and stated the charge as one count of Health and Safety Code section 11733. 2 The court held a sentencing hearing on June 14, 2018, and sentenced defendant to a
total term of 14 years in case No. INF1702028, and a consecutive two years in case
No. INF1700844, for an aggregate term of 16 years in state prison in both cases, plus credit
for time served.
On March 26, 2019, defendant filed a petition for writ of habeas corpus. On April
29, 2020, the court granted relief finding that the original trial court erred in imposing two
separate five-year enhancements under section 667, subdivision (a), as to case
No. INF1700844. The habeas court also found that the court had not taken an admission or
made any disposition on an enhancement under section 12022.1 in case No. INF702028.
The court remanded the matter to the trial court directing it to dismiss one of the two section
667, subdivision (a) enhancements in case No. INF1700844, and address and dispose of
enhancements alleged under sections 667, subdivision (a), and 12022.1 in case
No. INF1702028.
On October 7. 2020, defendant filed a request for resentencing, asking the court to
further consider striking the remaining section 667, subdivision (a) enhancement pursuant to
section 1385.
On February 4, 2021, the court held a resentencing hearing at which it considered the
order for resentencing from the court issuing the habeas writ, as well as defendant’s motion
to strike his section 667, subdivision (a) enhancement. After hearing argument from
counsel, the court opted not to strike the second section 667, subdivision (a) enhancement.
The court went on to otherwise resentence defendant pursuant to the writ order. It sentenced
3 defendant to a total of 11 years in case No. INF1700844.4 The court then struck the section
12022.1 enhancement and sentenced him to a consecutive two years in case
No. INF1702028. Thus, the aggregate sentence in both cases was 13 years.
On March 15, 2021, defendant filed a notice of appeal, in propria persona, and
requested that counsel be appointed. On March 18, 2021, appointed counsel filed an
amended notice of appeal as to both cases.
DISCUSSION
Defendant appealed, and upon his request this court appointed counsel to represent
him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436
and Anders v. California (1967) 386 U.S. 73, setting forth a statement of the case, and
identifying two potential arguable issues: (1) whether, on remand, the court should have
considered dismissing defendant’s second prior strike conviction; and (2) whether trial
counsel rendered ineffective assistance of counsel by not requesting the court to exercise its
discretion and dismiss the prior strike conviction. Counsel requests that we independently
review the record.
We offered defendant an opportunity to file a personal supplemental brief, which he
has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
conducted an independent review of the record and find no arguable issues.
4 The court sentenced defendant to three years, doubled pursuant to the strike, plus five years on the section 667, subdivision (a) enhancement. It dismissed the other section 667, subdivision (a) enhancement and ran the terms on the misdemeanors concurrent. The court also noted that the law had changed, so it dismissed the prison priors. 4 We recognize that generally the right to Wende/Anders review applies only at
appellate proceedings where defendant has a previously established constitutional right to
counsel. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555; Conservatorship of Ben C.
(2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 Cal.App.4th 496, 500-501
(Serrano); People v. Thurman (2007) 157 Cal.App.4th 36, 45.) The constitutional right to
appointed counsel extends to the first appeal of right and no further. (Serrano, at pp. 500-
501.)
Thus, if defendant’s motion to strike his section 667, subdivision (a) enhancement
was brought and heard independently of any other matters, he would not be entitled to
Wende/Anders review and we would order the matter dismissed. However, in this case, the
trial court ordered defendant’s motion heard at the same time as his resentencing pursuant to
a court order granting his petition for writ of habeas corpus and ordering him resentenced.
Our Supreme Court has held that “when part of a sentence is stricken on review, on remand
for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances.’ ” (People v.
Buycks (2018) 5 Cal.5th 857, 893.) Therefore, defendant was entitled at his resentencing to
move to dismiss the section 667, subdivision (a) enhancement whether or not he had filed a
separate motion. The court’s order denying defendant’s motion is appealable as an appeal
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