Filed 8/1/16 P. v. Rosas CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                        H042929
                                                                  (Monterey County
         Plaintiff and Respondent,                                 Super. Ct. No. SS001023A)

         v.

ROBERT ROSAS,

         Defendant and Appellant.


         On April 7, 2000, defendant Robert Rosas was convicted of one count of
unauthorized possession of drugs or alcoholic beverages in prison (Pen. Code, § 4573.8),
and the court found true a prior strike allegation. (Id., § 1170.12, subd. (c)(1).) The trial
court denied a motion to dismiss the strike prior and sentenced defendant to 32 months in
prison.1
         On May 27, 2015, defendant filed a petition for resentencing pursuant to Penal
Code section 1170.18, subdivision (a). The district attorney opposed the petition,
contending that defendant’s conviction for Penal Code section 4573.8 is ineligible under
the statute. On September 23, 2015, the court denied the petition, finding the offense
ineligible for the requested relief. Defendant filed a timely notice of appeal on
October 16, 2015.
         On appeal, we appointed counsel to represent defendant in this court. Appointed
counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496
         1
       We affirmed the conviction in People v. Rosas (Apr. 23, 2001, H022183
[nonpub. opn]).
(Serrano), which states the case and the facts but raises no specific issues. Pursuant to
Serrano, on April 11, 2016, we notified defendant of his right to submit written
argument in his own behalf within 30 days. On April 26, 2016, we received
defendant’s supplemental brief. In his brief defendant contends the trial court failed to
exercise its discretion “to strike the prior conviction in the interests of justice and in view
of the expressed Legislative intent to reduce the sentences of those prisoners who do not
pose a current risk of danger to the community if released on parole.” However the trial
court has neither the discretion nor duty to evaluate defendant’s danger to public safety
unless it first finds that the petitioner was convicted of an offense eligible for
resentencing under the statute. (Pen. Code, § 1170.18, subds. (a) & (b).) Further, Penal
Code section 1170.18 does not authorize a trial court to reconsider a motion to dismiss a
prior strike, brought pursuant to Penal Code section 1385 and People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, which it previously denied. The trial court lacks the
discretion to do so once the case is final, whether the offense is eligible for resentencing
under the statute or not. As the underlying conviction is long final, nothing in
defendant’s supplemental brief raises an arguable issue on appeal from an order denying
his petition, we must dismiss the appeal. (Serrano, supra, at pp. 503-504.)
                                        DISPOSITION
       The appeal is dismissed.




                                               2
                             Premo, Acting P.J.




WE CONCUR:




    Elia, J.




    Bamattre-Manoukian, J.
