Filed 2/19/14 P. v. Cook CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064535

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD197114)

DONALD LEE COOK,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

         Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Respondent.

         In 2006 Donald Lee Cook entered a negotiated guilty plea to residential burglary

(Pen. Code, §§ 459/460)1 and admitted three prior strike convictions (§§ 667, subds. (b)-



1        All statutory references are to the Penal Code.
(i), 1170.12), one prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd.

(c)) and serving five prior prison terms (§§ 667.5, subd. (b), 668). The court struck two

of the prior strike convictions and sentenced appellant to 18 years in prison.

       In August 2013, appellant filed a motion requesting the court recall the previously

imposed sentence pursuant to section 1170, subdivision (d) and modify his sentence in

accord with section 1170.126, a statute which became effective on November 7, 2012,

following the passage of Proposition 36. The court denied the motion, finding the request

to recall the sentence was untimely and appellant was not eligible for sentencing

modification because his commitment offense (residential burglary) was a serious felony

per section 1192.7, subdivision (c)(18).2

                                      DISCUSSION

       Appointed appellate counsel has filed a brief summarizing the proceedings below.

Counsel presents no argument for reversal but asks that this court review the record for

error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v.

California (1967) 386 U.S. 738, counsel refers to two possible by not arguable issues:

whether the court erred in (1) finding appellant is not eligible for resentencing pursuant to




2      This appeal arises from the court's denial of the sentence modification motion and
does not challenge the facts of the underlying burglary. It appears the appellant entered a
residential dwelling while the residents were not at home and stole a small amount of
personal property that was later recovered.


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section 1170.126; and (2) ruling the court did not have jurisdiction to modify appellant's

sentence pursuant to section 1170, subdivision (d).

       We granted defendant permission to file a brief on his own behalf. He has not

responded.

       A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and

Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by

appellate counsel, has disclosed no reasonably arguable appellate issues. Competent

counsel has represented Cook on this appeal.

                                      DISPOSITION

       The judgment is affirmed.


                                                                    HALLER, Acting P. J.

WE CONCUR:



BENKE, Acting P.J.



HUFFMAN, J.




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