Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06CF0204 Patrick Donahue, Judge.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
A jury convicted appellant Dominick Edwards of two counts of robbery (Pen. Code, § 211.) They found it true that he had suffered a prior conviction of a “Three Strikes” offense. The trial court sentenced him to 17 years in prison, comprising an upper term (doubled for the strike) of 10 years on count one, one-third the mid-term on the second robbery (doubled for the strike) for a total of 2 years, and 5 years for the prior offense.
Edwards appealed. We affirmed his conviction, but overturned the sentence on the basis it did not comply with Cunningham v. California (2007) 549 U.S. 270, 280-281 (which had yet to be decided at the time of the sentencing). We remanded for sentencing in compliance with the Cunningham standards as delineated in People v. Sandoval (2007) 41 Cal.4th 825. (People v. Edwards (Nov. 27, 2007, G037555) [nonpub. opn.].)
The trial court re-imposed the same sentence, this time complying with Cunningham. Appellant appealed once again, and we once again appointed counsel to represent him on appeal. Unsurprisingly – the case having been through the appellate process once and affirmed on all other grounds – appellate counsel was unable to find anything to argue. Counsel did not argue against her client, but advised this court she could find no issues to argue on appellant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Counsel filed a brief which set forth the facts of the case and the only point counsel could imagine would support an appellate issue: abuse of discretion in imposing the upper term.
Edwards was given 30 days to file written argument in his own behalf. He took advantage of that opportunity, filing a letter brief in which he contends his sentence violates Penal Code section 969f and breaches his “contract with the court” in that it imposes additional punishment for his prior conviction (i. e., the enhanced sentence under the Three Strikes law) which was not a bargained-for part of his earlier plea. His argument is that since there was no Three Strikes Law in 1991, when he pleaded guilty to the charge which is now alleged as an enhancing prior, his plea agreement could not have contemplated such use and it should not be allowed.
It is a good effort, but the issue has already been decided against him. The issue first came up after the passage of Proposition 8, in 1982. That initiative enacted section 667 of the Penal Code to add a five-year prison term for prior serious felonies (the enhancement which adds five years to appellant’s sentence). In People v. Jackson (1985) 37 Cal.3d 826, 833, the appellant complained, inter alia, that his prior pre-dated the enactment of the law. The court rejected this challenge, holding, “No constitutional bar prevents the application of section 667 to the later offense solely because the prior conviction which serves as a basis for enhancement was committed before the initiative passed. In the context of habitual criminal statutes, ‘increased penalties for subsequent offenses are attributable to the defendant’s status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.’ [Citation.]”
By parity of reasoning, the fact a prior conviction was suffered before the enactment of the Three Strikes law does not bar its use as a strike conviction. “This challenge to the application of the punishment provisions for recidivists under section 667, subdivisions (b) - (i) has been rejected by numerous courts. [Citations].” (People v. Ingram (1995) 40 Cal.App.4th 1397, 1404, overruled on another point in People v. Dotson (1997) 16 Cal.4th 547, 558-559.) People v. James (2001) 91 Cal.App.4th
1147 provides both an analysis of the law rejecting this argument and a brief history of its failures in the appellate courts. People v. Hatcher (1995) 33 Cal.App.4th 1526 is equally instructive. Suffice it to say an armada of challenges to the Three Strikes law has been sunk in the 11 years since it went into effect. And while it cannot yet be established that every ex post facto and due process argument possible regarding the application of Penal Code sections 969f, 667 and 1192.7 to prior strikes has been made and rejected, it can certainly be said the one raised here by appellant has been.
We have looked closely at the trial court’s resentencing of appellant (including the abuse of discretion argument, which counsel correctly identified as a non-starter). We reversed once in this case because we thought the sentencing violated appellant’s constitutional rights and would not hesitate to do it again. But we have concluded, as did appointed counsel, that there is no legal infirmity in it this time.
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.