Filed 1/23/15 P. v. Lee CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068005
         Plaintiff and Respondent,
                                                                        (Madera Super. Ct. No. MCR09012)
                   v.

SHANNON MAURICE LEE,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Mitchell G.
Rigby, Judge.
         Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-



         *   Before Cornell, Acting P.J., Kane, J. and Poochigian, J.
                                      INTRODUCTION
       Appellant/defendant Shannon Maurice Lee, a state prison inmate, filed a petition
for resentencing under Penal Code1 section 1170.126 (Proposition 36). It was denied,
and he filed a notice of appeal. His appellate counsel has filed a brief which summarizes
the facts with citations to the record, raises no issues, and asks this court to independently
review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
                                            FACTS
       In November 2003, defendant was convicted of second degree robbery (§ 211),
with two prior strike convictions (§ 667, subds. (b)–(i)). He was sentenced to a third
strike term.
       On March 20, 2013, defendant, acting in pro. per., filed a petition in the superior
court for resentencing pursuant to Proposition 36. Defendant asserted he was eligible for
resentencing because he was sentenced to a third strike term after being convicted of a
nonviolent felony, and he was not subject to any disqualifying conditions. The court
appointed counsel and set a hearing.
       On September 6, 2013, the court found defendant was ineligible for resentencing
under section 1170.126 because his current conviction was for robbery.
       On October 10, 2013, defendant filed a notice of appeal. He did not request or
obtain a certificate of probable cause.
                                        DISCUSSION
       As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on January 9, 2014, we
invited defendant to submit additional briefing. To date, he has not done so.



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



                                               2.
       Our independent review of the record indicates that the trial court properly denied
the petition to recall the sentence. The ameliorative provisions of Proposition 36 do not
apply to a defendant currently sentenced to state prison for a serious and/or violent
felony. (§ 1170.126, subds. (b), (e)(1).) “Any robbery” is a violent felony. (§ 667.5,
subd. (c)(9).) Defendant is statutorily ineligible for resentencing.
       After further review of the record, we find that no reasonably arguable factual or
legal issues exist.
                                      DISPOSITION
       The judgment is affirmed.




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