Filed 1/27/14 P. v. Brooks 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059239

v.                                                                       (Super.Ct.No. FBA03012)

EDWARD DWAYNE BROOKS,                                                    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.

         Arthur Martin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Edward Dwayne Brooks appeals after the trial court

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



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Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7,

2012)).1 Defendant filed a notice of appeal on July 24, 2013. We affirm.

                               PROCEDURAL BACKGROUND

         Defendant was charged by second amended information with four counts of

second degree robbery (§ 211, counts 1-3, 5) and one count of carjacking (§ 215,

subd. (a), count 4). It was further alleged that, in the commission of counts 1 and 2,

defendant personally used a firearm. (Former § 12022.5, subd. (a).) As to count 5, it was

alleged that defendant personally used a deadly and dangerous weapon. (Former

§ 12022.) In addition, the information alleged that defendant suffered three robbery

convictions in Tennessee that qualified as prior strikes (§ 667, subds. (b)-(i)) and serious

felonies (§ 667, subd. (a)(1)), and that he had served four prior prison terms (§ 667.5,

subd. (b)).

         A jury found defendant not guilty of count 1, but guilty of counts 2 through 5. It

also found not true the allegation that, as to count 2, defendant personally used a gun

(Former § 12022.5, subd. (a)), but found true the allegation that he used a weapon as to

count 5 (Former § 12022). A trial court found true the allegations that defendant suffered

three convictions that qualified as prior strikes (§ 667, subds. (b)-(i)) and serious felonies

(§ 667, subd. (a)(1)), and that he had served one prior prison term (§ 667.5, subd. (b)).

The court sentenced defendant to a total term of 89 years to life in state prison. The


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


                                                2
sentence consisted of the indeterminate term of 27 years to life on count 4, plus two

consecutive 25- year-to-life terms on counts 2 and 5; 10 years on the serious felony priors

(§ 667, subd. (a)(1)); one year on the weapon enhancement (§ 12022, subd. (b)(1)); and

one year on the prison prior (§ 667.5, subd. (b)).2

       On May 3, 2013, defendant filed an in pro. per. petition for resentencing under

section 1170.126. The court denied the petition on the ground that defendant’s current

convictions for carjacking (§ 215) and robbery (§ 211) made him ineligible for

resentencing under section 1170.126, subdivision (e)(1).

                                        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

two potential arguable issues: (1) whether the court erred in determining that defendant

was ineligible for resentencing under section 1170.126; and (2) whether section 1170.126

allows the reviewing court to review the propriety of prior convictions to determine if

they properly qualified as strike priors.




       2The court originally sentenced defendant to 25 years to life on count 3, but
subsequently stayed that term under section 654.


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      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.

                                    DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                HOLLENHORST
                                                                                      J.


We concur:


RAMIREZ
                       P. J.


CODRINGTON
                          J.




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