Filed 9/24/13 P. v. Irby 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058543

v.                                                                       (Super.Ct.No. FVI017908)

MICHAEL CAPRICE IRBY,                                                    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.

         Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

                                                             I

                                                 INTRODUCTION

         Defendant Michael Caprice Irby challenges the trial court’s order denying his

                                                             1
petition for resentencing under Penal Code section 1170.126.1 As discussed below, the

trial court’s order is affirmed.

                                                II

                                 STATEMENT OF THE CASE

         Defendant was charged for committing the following crimes in 2003: count 1 -

second degree commercial burglary (§ 459); count 2 - second degree robbery (§ 211)

with a gun enhancement (§ 12022, subd. (a)(1)); count 3 - possession of ammunition

(§ 12316, subd. (b)(1)); and count 4 - assault with a deadly weapon (§ 245, subd. (a)(1)).

It was also alleged as to counts 1, 2, and 4 that he personally inflicted great bodily injury

(§ 12022.7, subd. (a).)

         Defendant pleaded guilty to count 2, robbery (§ 211), a great bodily injury

enhancement (§ 12022.7, subd. (a)), and a prior strike conviction (§§ 667, subds. (a)-(i),

1170.12, subds. (a)-(d)). Defendant’s stipulated second strike sentence consisted of the

upper term of five years, doubled to 10 years for the robbery, and a consecutive sentence

of three years on the great bodily injury enhancement, for a total determinate term of 13

years.

         On February 13, 2013, defendant filed a handwritten petition asking the trial court

if he qualified for sentencing modification under section 1170.126. The trial court found

that defendant was not eligible for modification of his sentence under section 1170.126,




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


                                                2
subdivision (e), because his current offense is for robbery, a serious felony, and because

of the great bodily injury enhancement. The trial court denied defendant’s petition.

       Defendant appealed from this decision. Upon defendant’s request, this court

appointed counsel to represent him.

                                             III

                                       ARGUMENT

       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

and a summary of the facts, and requesting this court to conduct an independent review of

the record. We offered defendant an opportunity to file a personal supplemental brief,

but he has not done so. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have

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

       Proposition 36, which amended the Three Strikes Law, permits a prisoner serving

an indeterminate life sentence with two prior strike convictions to petition for

resentencing if his current conviction is not a serious or violent felony, among other

criteria. (§ 1170.126, subd. (e)(i).) Defendant is not eligible for resentencing under

section 170.126 because he received a determinate sentence of 13 years based on one

prior strike conviction. Even if section 1170.126 applied, defendant would not be eligible

for resentencing because he committed a serious felony with an enhancement for great

bodily injury. The trial court did not err in denying defendant’s petition under section

1170.126.




                                             3
                                              IV

                                       DISPOSITION

       The trial court’s order is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                     CODRINGTON
                                                                  J.

We concur:


HOLLENHORST
                 Acting P. J.


KING
                           J.




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