Filed 7/17/13 P. v. Lockhart 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058210

v.                                                                       (Super.Ct.No. FSB047178)

MARK ANTHONY LOCKHART,                                                   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.

         Steven A. Torres, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Mark Anthony Lockhart was charged with assault with

intent to commit rape (Pen. Code, § 220, count 1),1 kidnapping (§ 207, subd. (a), count

2), making criminal threats (§ 422, count 3), and attempted forcible rape (§§ 664/261,

subd. (a)(2), count 4). Count 3 was later dismissed, at the prosecution’s request. It was

also alleged that defendant had two prior strike convictions. (§§ 1170.12, subds. (a)-(d)

& 667, subds. (b)-(i).) Defendant represented himself and waived his right to a jury trial.

The trial court did not find defendant guilty of assault with the intent to commit rape or

kidnapping, but did find him guilty of attempted rape. (§§ 261/664, subd. (a)(2).) The

court also found the prior conviction allegations true. The court then sentenced defendant

to an indeterminate term of 25 years to life in prison.

       Approximately seven years later, defendant, in propria persona, filed a request to

be resentenced and released. The court found that defendant did not satisfy the criteria in

section 1170.126, subdivision (e). The court specifically found that defendant’s offense

of attempted rape was a serious felony, as defined in section 1192.7, subdivision (c), and

that his conviction required him to register as a sex offender (§ 290); therefore, he was

ineligible for resentencing. The court denied the petition for resentencing.

       Defendant then filed a petition for writ of habeas corpus, alleging that he was

denied resentencing “for a violent felony that [he] was not convicted on [sic].” The court

deemed the petition a motion for reconsideration and again found that defendant was

ineligible for resentencing under section 1170.126.


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


                                              2
        Defendant filed a timely notice of appeal based on the sentence. We affirm.

                                        ANALYSIS

        Defendant appealed and, upon his request, this court appointed counsel to

represent him. 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 and three potential arguable issues: (1) whether

attempted rape is a serious or violent offense (§§ 667.5, subd. (c) & 1192.7, subd. (c));

(2) whether attempted rape requires registration under section 290; and (3) whether the

trial court properly denied his request for resentencing under section 1170.126. Counsel

has also requested this court to conduct an independent review of the record.

        We offered defendant an opportunity to file a personal supplemental brief, which

he has done. He contends that two of “the issues of fact . . . [were] not supported by

evidence.” First, he asserts that his conviction was for attempt to commit rape

(§§ 261/664), which “came after [he] beat assault with intent to commit rape [under]

[P]enal [C]ode 220.” He then argues that “[a]fter beating the assault and intent in the

[section] 220 charge, it is not possible to have an assault left.” This argument is

irrelevant, since defendant was not convicted of assault, but was convicted of attempted

rape.

        Second, defendant argues that there was no evidence “to support the fact that [his]

conviction [was] in the [P]enal [C]ode book at 1192.7.” However, attempted rape is

defined as a serious felony in section 1192.7. (§ 1192.7, subd. (c)(3) & (39).)




                                             3
       Finally, defendant contends that there was an error in the “sentencing transcripts.”

He asserts that the sentencing court “did not use the trial court conviction . . . of attempt

to commit the crime of rape.” Instead, the sentencing court used “attempt[ed] forceable

[sic] rape.” This is a distinction without a difference. Defendant was convicted of

attempted rape in violation of section 261, subdivision (a)(2), which defines rape as an

act of sexual intercourse “accomplished against a person’s will by means of force.”

(§ 261, subd. (a)(2).)

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                 HOLLENHORST
                                                                           Acting P. J.


We concur:


RICHLI
                           J.


CODRINGTON
                           J.




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