Filed 7/29/16 P. v. Voightman CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B269100

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA086230)
         v.

ALLEN VOIGHTMAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Richard
R. Romero, Judge. Affirmed
         Allen Voightman, in pro. per.; and Richard B. Lennon, under appointment by the
Court of Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
                                      ____________________________
       On July 8, 2010, Allen Voightman broke into and was rummaging through a
detached garage when the owner confronted him, demanded that he leave, then chased
and physically detained him for police. Voightman was charged with first degree
burglary of an inhabited dwelling, which was alleged to constitute a violent felony
because a person other than an accomplice was present. (Pen. Code, §§ 459, 460, subd.
(a), 667.5, subd. (c)(21).)1 The information alleged Voightman had suffered six prior
convictions beginning in 1983, three of them for serious or violent felonies within the
meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12); had served several
prison terms and had not remained free of custody for a period of five years after his last
incarceration (§ 667.5, subd. (b)). Voightman pleaded not guilty.
       On November 4, 2010, a jury convicted Voightman of first degree burglary and
the court found allegations of five prior convictions, three of them strikes, were true. He
was sentenced to prison for 39 years to life. (§§ 667, 1170.12.) In 2011, we affirmed the
conviction. (People v. Voightman (Sept. 26, 2011, B228832 [nonpub. opn.]).)
       In November 2012, the electorate passed Proposition 36, which allows a person
convicted of a nonserious, nonviolent felony to petition for recall of a third strike
sentence and request resentencing as a second strike offender. (§ 1170.126, subd. (b).)
Voightman thereafter filed such a petition and requested resentencing. The trial court
denied the petition on the ground that Voightman’s current conviction was for a violent
felony, which disqualified him from resentencing. (§ 1170.126, subd. (b) [excluding
anyone convicted of a violent felony from eligibility for resentencing]; see § 667.5, subd.
(c)(21) [defining as a violent felony any first degree burglary committed when the
burgled residence was inhabited].) He timely appealed.
       We appointed counsel to represent Voightman on appeal and, after examination of
the record, appointed counsel filed an opening brief raising no issues and asking this
court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436, 441-
442.) On March 28, 2016, we sent letters to Voightman and appointed counsel, directing


       1
           All statutory references will be to the Penal Code.

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counsel to forward the appellate record to Voightman and advising Voightman that
within 30 days he could personally submit any contentions or issues that he wished us to
consider.
       Voightman responded with a letter brief in which he argues his 1983 and 1990
convictions, for robbery and receiving stolen property, respectively, should not have been
considered strikes when he was sentenced for the 2010 burglary because the offenses
were nonserious and predated the Three Strikes law. These points are irrelevant to
Voightman’s petition because he was convicted most recently of first degree burglary of
an inhabited residence while another person was present, a violent felony (§ 667.5, subd.
(c)(21)), which renders him ineligible for resentencing (§ 1170.126, subd. (b)). In any
event, Voightman’s contentions are untimely, as they should have been raised at his
sentencing for the 2010 crime, and meritless, as a conviction predating the Three Strikes
law may nevertheless be counted as a “strike.” (People v. Diaz (1996) 41 Cal.App.4th
1424, 1428.)
       We have examined the entire record and find no arguable issue exists. We are
therefore satisfied that Voightman’s attorney has complied with his responsibilities, and
accordingly affirm the judgment. (People v. Wende, supra, 25 Cal.3d at p. 441.)
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                               CHANEY, J.

We concur:



               ROTHSCHILD, P. J.



               JOHNSON, J.


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