Filed 11/13/15 P. v. Berg CA3
Reposted to provide correct filing date
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Siskiyou)
                                                            ----




THE PEOPLE,                                                                                  C078424

                   Plaintiff and Respondent,                                    (Super. Ct. No. SC SC CR F
                                                                                         98-0087)
         v.

ERIC ANTHONY BERG,

                   Defendant and Appellant.




         Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel for
defendant Eric Anthony Berg has asked us to review the record for arguable issues in this
appeal from the denial of his motion to modify his three strikes sentence pursuant to
Penal Code section 1170.126.1 Defendant filed a supplemental brief asserting the trial
court’s denial of his motion was incorrect for three reasons, which we explain post.



1   Further undesignated statutory references are to the Penal Code.

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Although we do not necessarily agree that defendant is entitled to Wende review, as we
explain, we nonetheless independently review the record for error and also consider
defendant’s briefing, explaining why the contentions he raises in his supplemental brief
are devoid of merit. We affirm.
                                     BACKGROUND
       Defendant was found guilty by jury of manufacturing methamphetamine while
personally armed with a firearm (Health & Saf. Code, § 11379.6, subd. (a); § 12022,
subd. (c)), possessing precursors with the intent to manufacture methamphetamine
(Health & Saf. Code, § 11383, subd. (c) while a principal was armed with a firearm), and
possession of a firearm by a convicted felon (former § 12021, subd. (a)(1)). The trial
court sustained six strike allegations (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and
five prior prison term allegations (§ 667.5, subd. (b)), and sentenced defendant to
consecutive 25-year-to-life terms on the manufacturing methamphetamine and felon in
possession counts, a concurrent 25-year-to-life term on the remaining count, and a
determinate 10-year term for the enhancements.
       On July 7, 2014, defendant filed a pro per motion for recall of sentence pursuant to
section 1170.126. The public defender had been initially appointed to represent
defendant, but had “made an initial threshold determination that [the office was]
essentially precluded from filing a petition based on the nature of the conviction” adding
“[t]here was a personal use allegation that was found true by a jury.”
       The trial court denied the motion, citing the “nature of the charges” of conviction,
without elaboration.
                                       DISCUSSION
       Whether the protections afforded by Wende and the United States Supreme Court
decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal
from an order denying a petition brought pursuant to Proposition 47 remains an open
question. Our Supreme Court has not spoken. The Anders/Wende procedures address

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appointed counsel’s representation of an indigent criminal defendant in the first appeal as
a matter of right and courts have been loath to expand their application to other
proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d
539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th
952; People v. Serrano (2012) 211 Cal.App.4th 496; People v. Dobson (2008) 161
Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman
(2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.)
       Nonetheless, here counsel has already undertaken to comply with Wende
requirements and defendant has been afforded the opportunity to file a supplemental brief
and has filed one. Thus here we shall adhere to Wende. The additional effort required of
this court to complete the review prescribed by Wende is relatively minor in comparison
to the expense that would be incurred if we dismissed the appeal and the Supreme Court
subsequently determined that Wende review was compelled as a matter of law. Despite
our skepticism, we shall review the case pursuant to the procedures enunciated in Wende.
       First, we have reviewed the record and see no arguable error that would result in a
determination more favorable to defendant. Turning to defendant’s supplemental brief:
he first asserts that “[t]here was no personal arming wording that made this being [sic]
personally armed a serious or violent crime. It was only an enhancement.” He next
claims that Proposition 36 retroactively turned this enhancement into a serious or violent
felony, “moving the goal post, without allowing [him] the chance to defend himself.”
Finally, he claims he was entitled to an evidentiary hearing.
       Section 1170.126 allows a defendant currently serving three strikes sentences for
crimes no longer subject to the third strike penalty to petition for resentencing.
(§ 1170.126, subd. (a).) One of the disqualifying factors from such resentencing, as
cross-referenced in section 1170.126, subdivision (e)(2), is that a defendant was armed
with a firearm during the commission of the current offense. (§ 667, subd. (e)(2)(C)(iii).)
There is no pleading and proof requirement for this exception. (People v. Osuna (2014)

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225 Cal.App.4th 1020, 1033; People v. Blakely (2014) 225 Cal.App.4th 1042, 1058;
People v. White (2014) 223 Cal.App.4th 512, 526-527.)
         As we have explained ante, a jury found defendant was personally armed with a
firearm while manufacturing methamphetamine. Thus defendant is disqualified at the
threshold from resentencing as to this offense. He is not entitled to a hearing on the issue
of eligibility for resentencing. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1340-
1341.)
                                     DISPOSITION
         The order denying defendant’s motion to modify is affirmed.



                                                       /s/
                                                 Duarte, J.



We concur:



      /s/
Raye, P. J.



      /s/
Blease, J.




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