Filed 7/31/14 P. v. Mobley CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A141487
v.
WAYNE MOBLEY,                                                            (City & County of San Francisco
                                                                         Super. Ct. No. 201125)
         Defendant and Appellant.


         Defendant Wayne Mobley was convicted in 2008 of one count of second degree
robbery, in violation of Penal Code sections 211, 212.5, subdivision (b).1 Defendant was
sentenced to 35 years-to-life pursuant to the three strikes law (§§ 1170.12, subds. (b), (c),
667, subds. (a), (d), (e)) based on his 14 prior second degree robbery and attempted
robbery convictions.
         In January 2014, defendant filed a petition for resentencing pursuant to section
1170.126, subdivision (e), enacted in 2012 by the passage of Proposition 36. The trial
court denied defendant’s petition on the ground that he was ineligible for resentencing
under the statute. Defendant filed a timely notice of appeal.2

1
    All statutory references are to the Penal Code
2
  The California Supreme Court has granted review to determine whether a defendant has
the right to appeal the trial court’s denial of his petition to recall his sentence under
section 1170.126. (See Teal v. Superior Court (2013) 217 Cal.App.4th 308, review
granted July 31, 2013, S211708.) To the extent the ruling is not appealable, we exercise
our discretion to treat defendant’s appeal as a petition for writ of mandate. (People v.
Dunckhurst (2014) 226 Cal.App.4th 1034, 1038, fn. 2.)


                                                             1
       On appeal, appointed counsel filed a brief raising no issues, but requested this
court to independently review the record for arguable contentions pursuant to People v.
Wende (1979) 25 Cal.3d 436. Having conducted an independent review of the record, we
find that there are no arguable appellate contentions.
       Section 1170.126, subdivision (e)(1) provides: “An inmate is eligible for
resentencing if: [¶] . . . The inmate 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.” Defendant is serving an indeterminate term of life imprisonment for a
conviction of robbery which is defined as serious and violent by sections 667.5,
subdivision (c)(9) and 1192.7, subdivision (c)(19). As such, defendant is statutorily
ineligible for resentencing due to his current conviction of a serious and violent felony.
       Defendant has filed a letter brief with this court that is largely incomprehensible.
To the extent that defendant appears to be arguing that his three strike sentence violates
the double jeopardy or ex post facto clauses of the federal Constitution, we note that the
time for such challenges has past and the courts have, in any event, consistently upheld
the constitutionality of the three strikes law. (See, e.g., Monge v. California (1998) 524
U.S. 721, 728; Witte v. United States (1995) 515 U.S. 389, 400.) Defendant’s argument
that the “people failed to carry the burden of proving [he] pose[s] an ‘unreasonable risk
of danger to public safety’ ” under section 1170.126, subdivision (f) is similarly
unavailing. Subdivision (f) is applicable only if a petitioner meets the criteria for
resentencing under subdivision (e).3

3
 Section 1170.126, subdivision (f) reads: “Upon receiving a petition for recall of
sentence under this section, the court shall determine whether the petitioner satisfies the
criteria in subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the
petitioner shall be resentenced pursuant to paragraph (1) of subdivision (e) of Section 667
and paragraph (1) of subdivision (c) of Section 1170.12 unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of danger to
public safety.”


                                              2
       Since defendant is statutorily ineligible for resentencing under section 1170.126,
we shall affirm the order denying his petition.
                                        Disposition
       The order is affirmed.



                                                  _________________________
                                                  Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Jenkins, J.




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