Filed 7/18/14 P. v. Wallace 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060334

v.                                                                       (Super.Ct.No. FRE006408)

ERIC GENE WALLACE,                                                       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.

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

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Eric Gene Wallace appeals after the trial court denied his

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




                                                             1
Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)).1 A

notice of appeal was filed on defendant’s behalf on January 7, 2014.2 We affirm.

                               PROCEDURAL BACKGROUND

         On January 14, 2004, a jury found defendant guilty of one count of robbery.

(§ 211.) A trial court found that he had two prior strike convictions (§§ 1170.12,

subds. (a)-(d) & 667, subds. (b)-(i)) and one prior serious felony conviction (§ 667,

subd. (a)(1)). On June 10, 2004, the court sentenced him to state prison for 25 years to

life on count 1, plus five years on the section 667, subdivision (a)(1) enhancement.

         On November 20, 2013, defendant filed an in propria persona petition for recall of

sentence 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).)



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

         2We 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.



                                                2
                                        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, and identifying one potential arguable issue:

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




                                                                RAMIREZ
                                                                                         P. J.


We concur:


RICHLI
                           J.


MILLER
                           J.


                                              3
