Filed 6/18/14 P. v. Singletary 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059557

v.                                                                       (Super.Ct.No. FSB06601)

CHARLES SINGLETARY,                                                      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.

         Neil Auwarter, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Michael

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

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       Defendant Charles Singletary filed a petition pursuant to Penal Code section

1170.1261 for resentencing. The court denied the petition finding defendant ineligible for

resentencing. On appeal,2 defendant contends the court erred in determining he was

ineligible for resentencing. We affirm.

                                 PROCEDURAL HISTORY

       In 1995, a jury convicted defendant of attempted robbery (count 1; §§ 664/211)

and possession of a controlled substance (count 3; Health and Saf. Code, § 11377, subd.

(a)). The court found true allegations defendant had incurred two prior felony strike

convictions for first degree burglary in 1986 and in 1989. The court found true

allegations the same convictions were serious felonies pursuant to section 667,

subdivision (a). The court sentenced defendant to an indeterminate term of 25 years to

life on count 1; a concurrent, indeterminate term of 25 years to life on count 3; and two


       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2 We note the appealability of the denial of a section 1170.126 petition is
currently being considered by the Supreme Court. (Teal v. Superior Court (2013) 217
Cal.App.4th 308, review granted July 31, 2013, S211708 [not appealable]; People v.
Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017
[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 writ of mandate. (Braziel v.
Superior Court (2014) 225 Cal.App.4th 933, 937 [treating appeal from denial of petition
for resentencing as a petition for writ of mandate]; In re Machado (2014) ___
Cal.App.4th ___, 2014 Cal.App. LEXIS 483, *3 [treating appeal from denial of petition
for resentencing as a petition for writ of habeas corpus.].) In any event, we will review
the merits of defendant’s appeal.



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consecutive, determinate terms of five years on each of the prior serious felony

enhancements.

       On June 28, 2013, defendant filed a petition for resentencing pursuant to section

1170.126. The court denied the petition finding defendant “does not satisfy the criteria in

[section] 1170.126[, subdivision] (e) and is not eligible.”

                                       DISCUSSION

       Defendant contends the court erred in determining he was ineligible for

resentencing pursuant to section 1170.126 because one of the substantive offenses upon

which defendant was sentenced, possession of a controlled substance, was not a serious

or violent felony. Thus, defendant argues he was statutorily eligible for resentencing

with respect to the count 3 offense for which the court imposed a concurrent 25 years to

life sentence. We disagree.

       Section 1170.126 “provides a means whereby prisoners currently serving

sentences of 25 years to life for a third felony conviction which was not a serious or

violent felony may seek court review of their indeterminate sentences and, under certain

circumstances, obtain resentencing as if they had only one prior serious or violent felony

conviction.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286.)

“First, the court must determine whether the prisoner is eligible for resentencing; second,

the court must determine whether resentencing would pose an unreasonable risk of

danger to public safety; and third, if the prisoner is eligible and resentencing would not




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pose an unreasonable risk of danger, the court must actually resentence the prisoner.”

(Id. at p. 1299.)

       Under section 1170.126, subdivision (e), an inmate is eligible for resentencing if

he is (1) serving an indeterminate term of life imprisonment imposed pursuant to section

667, subdivision (e)(2), for a felony or felonies that are not defined as serious by section

1192.7, subdivision (c); (2) his current sentence was not imposed for offenses appearing

in section 667, subdivisions (e)(2)(C)(i)-(iii); and (3) has not had prior convictions for

any of the offenses appearing in section 667, subdivision (e)(2)(C)(iv). Section 1170.126

requires the superior court to “consider all current felonies in determining eligibility for

recall of sentence.” (Braziel v. Superior Court, supra, 225 Cal.App.4th at p. 947.) “[A]

defendant inmate is not eligible for recall of his sentence if any of the offenses for which

he is serving a three strikes sentence is a serious and/or violent felony, even if one or

more of those sentences are not serious and/or violent felonies.” (Id. at p. 946.)

       Here, the court was required to consider all the felonies that led to defendant’s

indeterminate life sentence. This included consideration of defendant’s conviction in

count 1 for attempted robbery. (Braziel v. Superior Court, supra, 225 Cal.App.4th at p.

949 [Defendant ineligible for resentencing on consecutive 25 years to life term on

nonserious, nonviolent count when simultaneously convicted of ineligible serious and/or

violent felony].) Since a conviction for attempted robbery is a serious felony, defendant

was not eligible for resentencing pursuant to section 1170.126. (§ 1192.7, subds. (c)(19)




                                              4
[robbery] & (c)(39) [“any attempt to commit a crime listed in this subdivision other than

an assault”]. Therefore, the court properly denied defendant’s petition.3

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                          J.

We concur:


KING
                Acting P. J.


MILLER
                          J.




       3  We deny the People’s request for judicial notice of the “Official Voter
Information Guide for the California General Election of November 6, 2012” (Guide).
The court in Braziel conducted sufficient analysis of the Guide before concluding its
defendant was ineligible for resentencing on essentially the same basis as defendant in
this case. (Braziel v. Superior Court, supra, 225 Cal.App.4th at pp. 945-946.)



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