Filed 12/31/13 P. v. James 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059383

v.                                                                       (Super.Ct.No. FSB044381)

CHRISTOPHER DAVID JAMES,                                                 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.

         Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Christopher David James appeals from an order denying

his petition for recall of an indeterminate life term under Penal Code section 1170.126,

subdivision (f).1 We will affirm the order.

                                               I

                                      BACKGROUND

       On April 8, 2009, a jury found defendant guilty of first degree burglary (§ 459).

The jury also found true the allegations that the burglary was of an inhabited dwelling

house (§ 459) and that when defendant committed the offense, another person, other than

an accomplice, was present (§ 667.5, subd. (c)). In a bifurcated bench trial, the trial court

found true that defendant had suffered two prior strike convictions (§§ 667, subds. (b)-(i),

1170.12, subds. (a)-(d)) for rape (§ 261, subd. (a)(2)) and attempted oral copulation by

force (§§ 664/288a, subd. (c)(2)), two prior serious felony convictions (§ 667, subd.

(a)(1)) for rape and attempted oral copulation by force; and that defendant had served two

prior prison terms (§ 667.5, subd. (a)). On June 23, 2009, the trial court sentenced

defendant to a total indeterminate term of 30 years to life in state prison with credit for

time served.




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



                                               2
       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act. Among other things, this ballot measure enacted section

1170.126, which permits persons currently serving an indeterminate life term under the

“Three Strikes” law to file a petition in the sentencing court, seeking to be resentenced to

a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court

determines, in its discretion, that the defendant meets the criteria of section 1170.126,

subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

       Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is

eligible for resentencing if he or she is serving an indeterminate term of life

imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or

subdivision (c) of Section 1170.12 “for a conviction of a felony or felonies that are not

defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or

subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).)

       On July 15, 2013, defendant filed in pro per a petition for resentencing under

section 1170.126. The trial court denied the petition on August 1, 2013, finding

defendant ineligible for resentencing under section 1170.126 due to his current

commitment offense for residential burglary and his prior convictions for forcible rape

and attempted forcible oral copulation. Defendant filed a timely notice of appeal.2

       2 We note that the California Supreme Court has granted review in cases that have
found that the trial court’s order on a postjudgment petition pursuant to section 1170.126
is a nonappealable order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308,
review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941,
review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2),
                                                                  [footnote continued on next page]


                                              3
                                              III

                                          DISCUSSION

        We appointed counsel to represent defendant on appeal. After examination of the

record, 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

summary of the facts and potential arguable issues, and requesting this court conduct an

independent review of the record.

        We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so.

        Proposition 36 also added section 1170.126, which applies exclusively to those

“persons presently serving an indeterminate term of imprisonment pursuant to paragraph

(2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of

Section 1170.12, whose sentence under this act would not have been an indeterminate life

sentence.” (§ 1170.126, subd. (a).) Section 1170.126 sets forth a procedure through



[footnote continued from previous page]
Cal. Rules of Court.) 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, 853 [Fourth Dist., Div. Two] [treating appeal as petition for
writ of mandate due to uncertainty in the law].) In People v. Leggett (2013) 219
Cal.App.4th 846, 854, the appellate court expressed that when a trial court must
determine whether the prior convictions qualify under the resentencing provision, such
issue is appealable. We will review defendant’s appeal.



                                              4
which certain prisoners can petition the court for resentencing. Such a person may file a

petition to recall his or her sentence and be sentenced as a second strike offender.

(§ 1170.126, subd. (b).) An inmate is eligible for such resentencing if none of his or her

commitment offenses constitute serious or violent felonies and none of the enumerated

factors disqualifying a defendant for resentencing under Proposition 36 apply.

(§ 1170.126, subd. (e).)

       Section 1170.126, subdivision (e)(3), provides that an inmate is eligible for

resentencing if “[t]he inmate has no prior convictions for any of the offenses appearing in

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.”

Defendant here has a prior conviction for forcible rape and attempted forcible oral

copulation, offenses listed in sections 667, subdivision (e)(C)(iv)(I), and 1170.12,

subdivision (c)(C)(iv)(I). Additionally, defendant’s current conviction for residential first

degree burglary is a serious felony under California sentencing law. (See §§ 667,

subd. (d)(1), 1192.7, subd. (c)(18).) Defendant is therefore ineligible for resentencing

under section 1170.126.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

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




                                             5
                                     II

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               RAMIREZ
                                                         P. J.
We concur:



HOLLENHORST
                       J.



CODRINGTON
                       J.




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