Filed 2/10/14 P. v. Maldonado 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059388

v.                                                                       (Super.Ct.No. FVI011146)

CARLOS MALDONADO,                                                        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.

         Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Carlos Maldonado appeals after the trial court denied his

petition for resentencing under Penal Code section 1170.126, known as the Three Strikes




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Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7, 2012)).1

Defendant filed a notice of appeal on August 9, 2013. We affirm.

                               PROCEDURAL BACKGROUND

         On August 1, 2001, defendant entered a plea agreement and pled no contest to one

count of first degree burglary. (§ 459.) He also admitted that he had three strike priors.

(§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i).) Following the denial of defendant’s

motion to strike his prior strike convictions, the court sentenced him on May 9, 2003, to

state prison for 25 years to life.

         On July 8, 2013, defendant filed an in pro. per. petition for resentencing under

section 1170.126. The court denied the petition since defendant’s current conviction was

for a serious offense, which made him ineligible for resentencing under section 1170.126.

(§ 1170.126, subd. (e)(1).)

                                          ANALYSIS

         After the notice of appeal was filed, this court appointed counsel to represent

defendant. 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, a brief statement of the facts, and identifying

two potential arguable issues: (1) whether the denial of defendant’s section 1170.126




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


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petition is an appealable order;2 and (2) whether the trial court erred in denying

defendant’s petition for resentencing under section 1170.126.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has not done. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an

independent review of the record and find no arguable issues.

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                                           J.
We concur:


RAMIREZ
                        P. J.


McKINSTER
                           J.

       2  We note that 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 [court held it was
not appealable]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31,
2013, S212017 [court held it was 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
petition for 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 review defendant’s appeal.


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