Filed 5/21/14 P. v. Johnson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059555

v.                                                                       (Super.Ct.No. FSB024690)

LESLIE EUGENE JOHNSON,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Arielle Bases, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Leslie Eugene Johnson appeals after the trial court denied

his petition for resentencing under Penal Code section 1170.126, known as the Three



                                                             1
Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,

2012)).1 Defendant filed notice of appeal on August 30, 2013.2 We affirm.

                               PROCEDURAL BACKGROUND

         A jury convicted defendant of one count of unlawful driving or taking of a vehicle.

(Veh. Code, § 10851, subd. (a).) Following a bifurcated trial on defendant’s priors, the

trial court found that he had two prior strike convictions. (Pen. Code, §§ 1170.12,

subds. (a)-(d) & 667, subds. (b)-(i).) Both violations occurred when defendant was a

juvenile. On May 9, 2000, the court denied defendant’s motion to dismiss one or more of

his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13

Cal.4th 497 (Romero). It then sentenced him to state prison for 25 years to life.




         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

         2We note that the appealability of the denial of a section 1170.126 petition is
currently being considered by the Supreme Court. (See, e.g., Teal v. Superior Court
(2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708 [court held it was
not appealable]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31,
2013, S212017 [court held it was appealable].) Even if we were to conclude it was a
nonappealable order, we could, in the interest of judicial economy and because of
uncertainty in the law, treat defendant’s appeal as a petition for writ of habeas corpus or
petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4
[treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v.
Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating
appeal as petition for writ of mandate due to uncertainty in the law].) In any event, we
will review defendant’s appeal.



                                                2
       On May 8, 2013, defendant filed a petition for resentencing under section

1170.126. The court denied the petition since one of defendant’s prior strike convictions

was for kidnapping (§ 209), which made him ineligible for resentencing. (§ 1170.126,

subd. (e)(3).)

                                        ANALYSIS

       After the notice of appeal was filed, this court appointed counsel to represent

defendant. 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. 738 [87 S.Ct. 1396, 18 L.Ed.2d

493], setting forth a statement of the case, a brief statement of the facts, and identifying

three potential arguable issues: 1) whether the record contains sufficient evidence to

prove that defendant had a disqualifying prior conviction; 2) whether the court retained

discretion to strike defendant’s prior juvenile adjudication; and 3) whether the United

States Constitution allows the use of a prior juvenile adjudication to increase the

maximum sentence in a three strikes case, when there is no right to a jury trial in juvenile

proceedings.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has not done. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an

independent review of the record and find no arguable issues.




                                              3
                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                 HOLLENHORST
                                                           Acting P. J.


We concur:


McKINSTER
                         J.


KING
                         J.




                                        4
