Opinion
C086643
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN ALAN PARVIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 99F3140)
Appointed counsel for defendant John Alan Parvin asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) This appeal is the third filed by defendant in this case. We grant defendant's request for judicial notice of our prior opinions. (People v. Parvin (Mar. 25, 2003, C040905 [nonpub. opn.] (Parvin I); People v. Parvin (Nov. 5, 2014, C076261 [nonpub. opn.] (Parvin II).) (Evid. Code, §§ 452, 459.)
After reviewing the record in this case, we shall dismiss the appeal.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.App.4th 106, 110, 124.)
According to the probation report filed in connection with defendant's original sentencing, on April 25, 1999, the then 18-year-old defendant, acting without any apparent provocation, ignited a Molotov cocktail in the kitchen of his mother's home, with his mother and brother close by. The resulting fire severely burned and permanently disfigured his mother, burned his brother's hands, and damaged the home.
"In 2002, a jury convicted [defendant] of arson of a structure causing great bodily injury (Pen. Code, § 451, subd. (a) -- count 3), arson of an inhabited structure (Pen. Code, § 451, subd. (b) -- count 4), first degree residential burglary (Pen. Code, § 459 -- count 5), and possession of flammable material (Pen. Code, § 453, subd. (a) -- count 6).
"The trial court selected arson of an inhabited structure (count 4) as the principal term and sentenced defendant to an indeterminate term of 25 years to life on that count. The trial court stayed the sentences on the other convictions, but imposed a determinate term of 12 years for various enhancements.
"In [defendant's] first appeal, this court reversed defendant's conviction for arson of an inhabited structure, struck a prior prison [term] enhancement, and remanded the matter for resentencing.
"The trial court resentenced defendant in 2003, selecting first degree burglary (count 5) as the principal term[,] and sentenced defendant to an indeterminate term of 25 years to life in prison on that count. The trial court stayed the sentences on the other convictions, but imposed a determinate term of 11 years for various enhancements. Defendant did not file a timely appeal after resentencing.
"More than a decade later, on February 19, 2014, defendant moved the trial court to modify his sentence pursuant to Penal Code section 1260, claiming the trial court erred in resentencing when it selected a previously stayed term as the new principal term. The trial court denied the motion as untimely. Defendant now appeals from that ruling." (Parvin II, supra, C076261.)
We dismissed the appeal as taken from a nonappealable order (the trial court's ruling denying defendant's motion to modify sentence, made long after the sentencing court had lost jurisdiction to do so). (Parvin II, supra, C076261.) We also found that "[b]ecause the trial court no longer had jurisdiction to recall defendant's sentence when it issued the order denying his motion, denial of the motion could not have affected defendant's substantial rights" (cf. Pen. Code, § 1237, subd. (b)). (Parvin II, supra, C076261.)
On December 27, 2017, defendant filed a pleading in the superior court styled, "Writ of Mandamus -- Prohibition (--) Coram Nobis -- The All Writs Act," in which he apparently contended the trial court had erred in 2002 by treating a juvenile adjudication as a prior conviction for purposes of the three strikes law. He had raised this contention unsuccessfully in his first appeal, where we rejected it in reliance on People v. Bowden (2002) 102 Cal.App.4th 387. (Parvin I, supra, C040905.) (See also People v. Nguyen (2009) 46 Cal.4th 1007, 1020-1028, filed after our opinion [affirming Bowden]; accord, People v. Chism (2014) 58 Cal.4th 1266, 1334 [declining to reconsider Nguyen].)
On January 31, 2018, the trial court summarily denied the writ, stating in part: "Thus, [the court] having already ruled on the issue [in 2014], more than a decade having passed since the original sentence, [defendant] having failed to appeal the issue on resentencing as would have been proper, and having failed to support his rather vague request for relief with supporting documentation or law, writ relief does not lie."
Defendant filed a timely notice of appeal from the trial court's order.
Appointed counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief renewing his contention that a juvenile adjudication may not be used as a prior conviction for purposes of the three strikes law. Construing his brief as an attempt to obtain modification of his original sentence long after the sentencing court has lost jurisdiction to do so, we dismiss the appeal for the reasons stated in Parvin II.
DISPOSITION
The appeal is dismissed.
/s/_________
HOCH, J. We concur: /s/_________
BUTZ, Acting P. J. /s/_________
MURRAY, J.