Filed 4/29/14 P. v. Wilson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059824

v.                                                                       (Super.Ct.No. FVW032243)

GARY ALLEN WILSON,                                                       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.

         Defendant and appellant Gary Allen Wilson filed a petition for resentencing




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pursuant to Penal Code section 1170.126.1 The court denied the petition. After

defendant’s counsel filed the notice of appeal, this court appointed counsel to represent

defendant on appeal.2 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, setting forth a

statement of the case, a brief statement of the facts, and identifying one potentially

arguable issue: whether a possible habeas corpus claim exists based on whether defense

counsel’s purportedly erroneous advice to defendant convinced defendant to admit that

his prior conviction constituted a strike, when it allegedly did not.

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

he has done. In his brief, defendant argues his trial counsel rendered constitutionally

ineffective assistance of counsel (IAC) by advising him to admit that his prior conviction

constituted a strike, when it did not. Defendant additionally contends appellate counsel

has rendered IAC by failing to file a habeas corpus petition raising the issue. Defendant

attached to his supplemental brief a petition for writ of habeas corpus attacking the

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

       2  We note the appealability of the denial of a section 1170.126 petition is
currently being considered by the Supreme Court. (See, e.g., Teal v. Superior Court
(2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708 [not appealable];
People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017
[appealable].) Even if we were to conclude it was a nonappealable order, 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 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,
852-853 [Fourth Dist., Div. Two] [treating appeal as petition for writ of mandate due to
uncertainty in the law].) In any event, we will assume the order is appealable and review
defendant’s appeal.


                                              2
constitutional validity of his plea due to trial counsel’s alleged IAC. By order dated April

9, 2014, we ordered defendant’s petition for writ of habeas corpus detached from the

supplemental brief and filed as a separate case to be separately determined. We affirm

the judgment.

                                PROCEDURAL HISTORY

       On May 2, 2005, defendant pled guilty to robbery (count 1; § 211), admitted a

prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667,

subds. (b)-(i), 1170, subds. (a)-(d)). In return, the People moved to dismiss additional

charges. The People also moved to dismiss an enhancement allegation attached to count

1 that defendant had personally used a deadly weapon (§ 12022, subd. (b)(1)), had

sustained an additional prior strike conviction (§§ 667, subds. (b)-(i), 1170, subds. (a)-

(d)), had sustained an additional prior serious felony conviction (§ 667, subd. (a)(1)), and

had sustained two prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant,

according to his plea agreement, to a determinate term of 15 years’ incarceration

consisting of the aggravated term of five years on the robbery offense, doubled pursuant

to the prior strike conviction, and a consecutive five years on the prior serious felony

conviction. Defendant did not appeal his conviction.

       On August 19, 2013, defendant filed a petition for resentencing pursuant to section

1170.126. The court denied the petition finding “that [defendant] does not satisfy the

criteria in [section] 1170.126[, subdivision] (e) and is not eligible. [¶] Defendant was not

sentenced as a ‘3 striker’. [¶] Defendant received a determinate term[.] [Section]

1170.126 does not apply to such a ‘1 strike’ determinate sentence.”


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                                      DISCUSSION

       Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues. (§ 1170.126 [“The resentencing

provisions under this section and related statutes are intended to apply exclusively to

persons presently serving an indeterminate term of imprisonment”]; People v. Vines

(2011) 51 Cal.4th 830, 875-876 [“If the record on appeal ‘“‘sheds no light on why

counsel acted or failed to act in the manner challenged[,] the claim on appeal must be

rejected,”’ and the ‘claim of ineffective assistance in such a case is more appropriately

decided in a habeas corpus proceeding’”]; See In re Brown (2013) 218 Cal.App.4th 1216,

1222 [the proper procedure for challenging the ostensibly erroneous admission of a prior

strike conviction based on defense counsel’s purported IAC is the filing of a petition for

writ of habeas corpus].)

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                             J.

We concur:


RAMIREZ
                        P. J.


HOLLENHORST
                           J.



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