Filed 2/21/14 P. v. Singleton 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058947

v.                                                                       (Super.Ct.No. FVI08419)

MICHAEL SINGLETON,                                                       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.

         Neil Auwarter, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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        Defendant Michael Singleton appeals from an order denying his petition for recall

of his indeterminate life term, under Penal Code section 1170.126, subdivision (f).1 We

will affirm the order.

                                       BACKGROUND2

        Defendant was convicted in 2001 of one count of attempted second degree robbery

and two counts of second degree robbery. (§§ 211, 664.) The information alleged four

prior serious or violent felony convictions, within the meaning of sections 667,

subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and within the

meaning of section 667, subdivision (a)(1). The information also alleged two prior prison

terms, within the meaning of section 667.5, subdivisions (a) and (b). The trial court

found all prior conviction allegations true, but struck all but two of them. The court

sentenced defendant to three consecutive terms of 25 years to life, plus 10 years for two

prior serious felony convictions pursuant to section 667, subdivision (a)(1). On June 19,

2012, defendant filed a petition for writ of coram nobis, which was denied on July 5,

2012.

        On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act. Among other things, this ballot measure enacted section

1170.126, which permits persons currently serving an indeterminate life term under the

three strikes law to file a petition in the sentencing court, seeking to be resentenced to a


        1   All further statutory citations refer to the Penal Code.

        2   The underlying facts are not material to the issue we consider in this appeal.

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determinate term as a second-striker. (§ 1170.126, subd. (f).) If the trial court

determines, in its discretion, that the defendant meets the criteria of section 1170.126,

subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

Section 1170.126, subdivision (e), provides, as pertinent here, that an inmate is eligible

for resentencing if he or she “has no prior convictions for any of the offenses appearing in

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.”

(§ 1170.126, subd. (e)(3).)3

       On May 9, 2013, defendant filed a petition for resentencing pursuant to section

1170.126. On May 23, 2013, the trial court denied the motion, stating that defendant was

disqualified by virtue of his prior convictions for violating sections 288a and 286,

subdivision (c).

       Defendant filed a timely notice of appeal.

                                       DISCUSSION

       We appointed counsel to represent defendant on appeal. After examination of the

record, counsel filed an opening brief raising no issues and asking this court to

independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We have

independently examined the record and have found no arguable issues. We are satisfied

that defendant’s attorney has fully complied with his responsibilities and that no arguable

       3 Defendant has a prior conviction for violation of section 288a and a prior
conviction for violation of section 286, both of which are offenses listed in section 667,
subdivision (e)(2)(C)(iv)(II).


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issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, at

p. 441.) In reaching this conclusion, we considered the following potential issues,

mentioned by counsel but not argued:

       1. Whether denial of a petition pursuant to section 1170.126 is an appealable

order. (Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31,

2013, S211708.)

       The California Supreme Court has granted review in cases that have found that the

trial court’s order on a postjudgment petition pursuant to section 1170.126 is a

nonappealable order. (See, e.g., Teal v. Superior Court, supra, S211708; People v.

Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017.) Even if

we were to conclude that the order is not appealable, we could consider, in the interest of

judicial economy and because of uncertainty in the law, that defendant’s appeal is 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, 853

[Fourth Dist., Div. Two] [treating appeal as petition for writ of mandate due to

uncertainty in the law].) Because defendant has not asserted in this appeal that the trial

court erred in denying his petition and because it is clear that defendant’s prior

convictions render him ineligible for relief in any event, we need not reach that issue.

       2. Whether any appeal or writ proceeding attacking the judgment in the

underlying prosecution modified the judgment in any manner affecting defendant’s



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eligibility for relief pursuant to section 1170.126. The record does not disclose any such

modification.

       3. Whether the fact that second degree robbery was not a violent offense within

the meaning of section 667.5, subdivision (c), in 1996, when defendant committed the

underlying offenses, affects defendant’s eligibility for relief under section 1170.126.

Defendant is ineligible because of his prior convictions for violation of section 288a and

section 286, subdivision (c). (See fn. 3 and accompanying text, ante.) Accordingly, it is

immaterial that his current offenses were not violent offenses in 1996.

       We have also reviewed defendant’s supplemental brief. In his brief, defendant

raises only issues which are not germane to the denial of his petition for resentencing.

Because the appeal was taken solely from the order denying his petition, the issues he

seeks to raise are not cognizable in this appeal.

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                                Acting P. J.
We concur:


RICHLI
                           J.


MILLER
                           J.

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