Filed 5/15/14 P. v. Alvarez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059923

v.                                                                       (Super.Ct.No. FWV020079)

RAUL ALVAREZ,                                                            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.

         Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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       On October 30, 2000, a jury found defendant Raul Alvarez guilty of misdemeanor

drawing or exhibiting a firearm as lesser included offenses to counts 1 and 3 (Pen. Code,

§ 417, subd. (a)(2)); making criminal threats as alleged in counts 2 and 4 (Pen. Code,

§ 422); being a felon in possession of a firearm as alleged in count 5 (Pen. Code, former

§ 12021, subd. (a)(1)); and being a felon in possession of a firearm in a motor vehicle as

alleged in count 6 (Pen. Code, former § 12025, subd. (a)(1)). The jury also found true

allegations that defendant personally used a firearm in the commission of the offenses

alleged in counts 2 and 4. (Pen. Code, former § 12022.5, subd. (a)(1).)

       Following a bifurcated trial on October 31, 2000, the trial court found true

allegations that defendant: (1) suffered two prior convictions for serious or violent

felonies for purposes of sentencing under Penal Code sections 667, subdivisions (b)

through (i) and 1170.12, subdivisions (a) through (d); (2) suffered two prior convictions

for serious felonies within the meaning of Penal Code section 667, subdivision (a)(1); and

(3) suffered three prison priors within the meaning of Penal Code section 667.5,

subdivision (b).

       On September 21, 2001, the trial court sentenced defendant under the Three

Strikes law to 25 years to life on count 2, and designated that as the principal term. The

court sentenced defendant to the middle term of four years for the true finding of personal

use of a firearm in the commission of count 2, to be served consecutively to the sentence

on count 2. For count 4, the court sentenced defendant under the Three Strikes law to

25 years to life, to be served concurrently to the sentence on count 2. The court imposed

an additional middle term of four years for the true finding of personal use of a firearm in

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the commission of count 4, but stayed it pursuant to Penal Code section 654. For

defendant’s two prior serious felonies, the trial court sentenced defendant to five years

each, to be served consecutively to the sentence on count 2. Finally, the court sentenced

defendant to one year for one of his prison priors, to be served consecutively to the

sentence on count 2, and struck the remaining two prison priors. In total, the court

sentenced defendant to 40 years to life in state prison.

        On October 3, 2013, defendant, acting in propria persona, filed a petition for

recall of his sentence pursuant to Penal Code section 1170, subdivision (d), contending

his sentence should be reversed based on a violation of his due process rights and denial

of a fair trial. At an ex parte hearing conducted on October 21, 2013, the trial court found

that Penal Code section 1170, subdivision (d), did not apply to defendant because the

time to move for a sentencing recall had long passed, and it denied the petition. The

court nonetheless deemed defendant’s petition to be a request for resentencing under

Proposition 36, the Three Strikes Reform Act of 2012, but found defendant was not

eligible for resentencing based on the jury’s true findings that defendant personally used

a firearm. (Pen. Code, § 1170.126, subd. (e)(2).)

       Defendant timely appealed from the denial of his petition.




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                                     DISCUSSION1

       After defendant appealed, this court appointed counsel to represent him. Counsel

filed a brief pursuant to 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 facts and

potential arguable issues, and requesting that this court undertake an independent review

of the record on appeal.

       We invited defendant to file a personal supplemental brief, but he did not do so.

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

independent review of the record and find no arguable issues.

                                     DISPOSITION

       The postjudgment order is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                               Acting P. J.
We concur:


KING
                           J.

CODRINGTON
                           J.


       1 Because defendant appeals from an order denying his postjudgment petition for
resentencing, the underlying facts of his 2000 convictions are neither included in the
record nor applicable to this appeal.



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