Filed 3/4/16 P. v. Wash CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144772
v.
KENNETH WASH,                                                        (Alameda County
                                                                     Super. Ct. No. CH31435A)
         Defendant and Appellant.


         Defendant Kenneth Wash appeals from the trial court’s denial of his petition to
recall his sentence under Penal Code section 1170.126.1 His appellate counsel asked this
court for an independent review of the record to determine whether there are any arguable
issues. (People v. Wende (1979) 25 Cal.3d 436.) Wash was informed of his right to file a
supplemental brief, but he did not do so. We find no arguable issues and affirm.
         In 2002, a jury convicted Wash of one count of robbery and found true the
allegation that during the robbery’s commission he inflicted great bodily injury on an
elderly person.2 The jury also found he had suffered two prior convictions for robbery
and burglary, and he was sentenced to 41 years to life in prison under the Three Strikes
law, which “requires criminal sentences to be increased when a defendant has been




1
 All further statutory references are to the Penal Code.
2
 The conviction was under section 211, and the sentencing enhancement was found true
under former section 12022.7, subdivision (c).

                                                             1
convicted of one or more prior serious or violent felonies, or ‘strikes.’ ”3 (People v. Saez
(2015) 237 Cal.App.4th 1177, 1193.)
       Proposition 36, the Three Strikes Reform Act of 2012, added section 1170.126,
which “created a postconviction release proceeding whereby a prisoner who is serving an
indeterminate life sentence imposed pursuant to the three strikes law for a crime that is
not a serious or violent felony and who is not disqualified, may have his or her sentence
recalled and be sentenced as a second strike offender unless the court determines that
resentencing would pose an unreasonable risk of danger to public safety.” (People v.
Yearwood (2013) 213 Cal.App.4th 161, 168.) In October 2014, proceeding in propria
persona, Wash filed a petition to recall his sentence under section 1170.126. He
contended he was eligible for resentencing because the current offense (robbery) was not
a strike and his prior conviction for burglary was improperly determined to be a strike.4
The trial court denied the petition.
       It is far from clear that Wende review is available in an appeal from the denial of a
section 1170.126 petition. (See People v. Serrano (2012) 211 Cal.App.4th 496, 503
[suggesting criminal defendants afforded Wende review only in “first appeal of right”
from conviction].) Assuming, without deciding, that such review is available here, we
have not discovered any arguable issue raised by the denial of Wash’s petition to recall
his sentence. There can be no dispute that robbery is a violent and serious felony.
(§§ 667.5, subd. (c)(9) [violent felonies include “[a]ny robbery”], 1192.7, subd. (c)(19)
[“robbery or bank robbery” is serious felony].) Thus, the trial court correctly determined
that Wash is ineligible for resentencing under section 1170.126 because his current
offense is a strike. (See § 1170.126, subd. (b); People v. Yearwood, supra, 213
Cal.App.4th at p. 168.)


3
 This court affirmed the judgment in a nonpublished opinion. (People v. Wash (Aug. 7,
2003, A099994) [nonpub. opn.].)
4
  Wash has filed a petition for writ of habeas corpus, pending in this court as In re
Kenneth Wash, No. A146983, in which he also claims that his burglary conviction is not
a strike.

                                             2
      The denial of Wash’s petition to recall his sentence under section 1170.126 is
affirmed.




                                           3
                                _________________________
                                Humes, P.J.


We concur:


_________________________
Margulies, J.



_________________________
Banke, J.




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