Filed 5/12/15 P. v. McKinley CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B257516

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. VA120046)
                   v.

NATHANIEL MCKINLEY,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Thomas I. McKnew, Jr., Judge. Affirmed.

         Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance by Plaintiff and Respondent.




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       This appeal is from the resentencing hearing held May 22, 2014, following a
partial reversal and remand from this court with directions to the superior court to hold a
new sentencing hearing. (People v. McKinley (Nov. 22, 2013, B243916) [nonpub. opn.].)
       Defendant and appellant Nathaniel McKinley was convicted by jury of one count
of first degree burglary. (Pen. Code, § 459.)1 In a bifurcated proceeding, defendant
waived trial on the special allegations he had suffered three prior convictions that
qualified as strikes under the “Three Strikes” law (§ 667, subds. (b)-(i), § 1170.12,
subds. (a)-(d)), and also qualified as serious felonies and prior prison terms under section
667, subdivision (a)(1), and section 667.5, subdivision (b), respectively. Defendant
admitted the truth of the three prior felony conviction allegations, and also filed a motion
requesting the court to strike two of the qualifying strikes pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497.
       In the original sentencing proceedings held in July 2012, the trial court exercised
its discretion pursuant to section 1385 to strike two of the prior strikes, and sentenced
defendant as a second-strike offender. Defendant was sentenced to an aggregate state
prison term of 17 years, calculated as follows. The court imposed the high term of
six years on the burglary count, doubled to12 years due to the strike. The court
identified, on the record, the aggravating factors supporting its decision to impose the
upper term. The court then added one consecutive five-year term pursuant to section 667,
subdivision (a)(1), explaining it had discretion to strike the other two 5-year
enhancements. The court struck the special allegation concerning the one-year prison
term priors, imposed various fines and fees, and awarded total presentence custody
credits of 501 days.
       The People timely appealed from the July 31, 2012 sentencing order. Defendant
obtained leave from this court to file a late notice of cross-appeal from the sentencing
order. No challenge to the underlying judgment of conviction was made.



1      All further undesignated section references are to the Penal Code.


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       In the first appeal, the People argued the court had no discretion to refrain from
imposing consecutive five-year terms for all three of the prior convictions which
qualified as serious felonies under section 667, subdivision (a)(1).
       We concluded the trial court was without discretion to strike any prior serious
felony convictions under section 667, subdivision (a)(1). (People v. McKinley, supra,
B243916, pp. 5-6.) We further concluded defendant’s knowing and voluntary admission
at the sentencing hearing, made with the assistance of counsel, was sufficient to establish
the prior convictions were qualifying felonies. (Id. at pp. 6-10.) We remanded to the trial
court and ordered that a new sentencing hearing be held. (Id. at p. 11.)
       The remittitur issued March 20, 2014, and the new sentencing hearing was held
May 22, 2014. The court, after hearing the argument of counsel, imposed sentence. The
court imposed the same sentence as originally imposed, with the exception that it
imposed a five-year enhancement pursuant to section 667, subdivision (a)(1) for all three
of the qualifying prior convictions. Defendant was therefore sentenced to a total state
prison term of 27 years.
       Defendant timely appealed from the modified judgment of conviction entered
following the resentencing hearing. We appointed appellate counsel to represent
defendant. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende) in which no issues were raised. The brief included a declaration from
counsel that he reviewed the record and sent a letter to defendant explaining his
evaluation of the record. Counsel further declared he advised defendant of his right,
under Wende, to submit a supplemental brief within 30 days.
       On December 18, 2014, defendant submitted a handwritten letter, originally
docketed as a supplemental brief. However, it was subsequently determined the letter
from defendant was a request for an extension of time, due in part to an alleged failure to
have been provided copies of the trial transcript.
       On March 2, 2015, this court granted defendant a 30-day extension of time within
which to file his supplemental brief. On March 27, 2015, defendant requested a further
extension of time to file a supplemental brief because he did not have his entire jury trial


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transcripts. On April 1, 2015, this court denied defendant’s request for a further
extension of time.
       Defendant did not submit a timely supplemental brief. On May 4, 2015, this court
received defendant’s “motion to continue his appeal process” requesting leave to file a
supplemental brief. Defendant also submitted a supplemental brief dated April 29, 2015.
This court granted defendant’s request to file the late brief which was deemed submitted
as of May 5, 2015.
       The declaration of defendant’s appointed counsel states under penalty of perjury
that copies of the one volume clerk’s transcript and the one volume reporter’s transcript
were provided to defendant. Our jurisdiction for this appeal is narrow and consists only
of review of the resentencing hearing held in May 2014. The jury trial transcripts from
the underlying trial are not germane. The 10 points listed by defendant in his
supplemental brief identify issues related only to the underlying trial such as “instructions
on lesser included offenses.” Defendant does not raise any issue pertaining to the
resentencing hearing which is the subject of this appeal.
       We have examined the record relevant to this appeal and are satisfied that
appointed counsel fully complied with his responsibilities in assessing whether or not any
colorable appellate issues exist. We conclude there are no arguable appellate issues.
(People v. Kelly (2006) 40 Cal.4th 106; Wende, supra, 25 Cal.3d 436.)
                                      DISPOSITION
       The modified judgment of conviction entered May 22, 2014, is affirmed.


                                                         GRIMES, J.
       WE CONCUR:
                     RUBIN, Acting P. J.




                     FLIER, J.



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