Filed 3/18/14 P.v. McGee 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059550

v.                                                                       (Super.Ct.No. FSB900485)

ANTHONY ALAN MCGEE,                                                      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.

         David K. Rankin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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       Defendant and appellant Anthony Alan McGee appeals from an order denying his

petition for recall of his indeterminate life term under Penal Code section 1170.126,

subdivision (f).1 We will affirm the order.

                                               I

                                      BACKGROUND

       On April 21, 2009, a jury found defendant guilty of one count of inflicting

corporal injury on a cohabitant (§ 273.5, subd. (a)) and one count of assault with a deadly

weapon (§ 245, subd. (a)(1)). The jury also found true that defendant had suffered two

prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) for forcible rape

(§ 261, subd. (a)(2)) and forcible oral copulation on a child under the age of 14 (§ 288a,

subd. (c)), two prior serious felony convictions (§ 667, subd. (a)) for forcible rape and

oral copulation, and one prior prison term (§ 667.5, subd. (b)). On September 9, 2010,

the trial court sentenced defendant to a total term of 26 years to life in state prison with

credit for time served.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act. Among other things, this ballot measure enacted section

1170.126, which permits persons currently serving an indeterminate life term under the

“Three Strikes” law to file a petition in the sentencing court, seeking to be resentenced to

a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court




       1   All future statutory references are to the Penal Code unless otherwise stated.


                                               2
determines, in its discretion, that the defendant meets the criteria of section 1170.126,

subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

       Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is

eligible for resentencing if he or she is serving an indeterminate term of life

imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or

subdivision (c) of section 1170.12 “for a conviction of a felony or felonies that are not

defined as serious and/or violent felonies by subdivision (c) of [s]ection 667.5 or

subdivision (c) of [s]ection 1192.7.” (§ 1170.126, subd. (e)(1).)

       On March 29, 2013, defendant filed a petition for resentencing under section

1170.126. The trial court denied the petition on August 20, 2013, finding defendant

ineligible for resentencing under section 1170.126 due to his prior convictions for

forcible rape and forcible oral copulation of a child under the age of 14, which are

sexually violent offenses under Welfare and Institutions Code section 6600. Defendant

filed a timely notice of appeal.2

       2 We note that the California Supreme Court has granted review in cases that have
found that the trial court’s order on a postjudgment petition pursuant to section 1170.126
is a nonappealable order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308,
review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941,
review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2),
Cal. Rules of Court.) 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, 853 [Fourth Dist., Div. Two] [treating appeal as petition for
writ of mandate due to uncertainty in the law].) In People v. Leggett (2013) 219
Cal.App.4th 846, 854, the appellate court expressed that when a trial court must
                                                                  [footnote continued on next page]


                                              3
                                              II

                                          DISCUSSION

        We appointed counsel to represent defendant on appeal. After examination of the

record, 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, setting forth a statement of the case, a

summary of the facts and potential arguable issues, and requesting this court conduct an

independent review of the record.

        We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. Proposition 36 added section 1170.126, which applies exclusively to

those “persons presently serving an indeterminate term of imprisonment pursuant to

paragraph (2) of subdivision (e) of [s]ection 667 or paragraph (2) of subdivision (c) of

[s]ection 1170.12, whose sentence under this act would not have been an indeterminate

life sentence.” (§ 1170.126, subd. (a).) Section 1170.126 sets forth a procedure through

which certain prisoners can petition the court for resentencing. Such a person may file a

petition to recall his or her sentence and be sentenced as a second strike offender.

(§ 1170.126, subd. (b).) An inmate is eligible for such resentencing if none of his or her

commitment offenses constitute serious or violent felonies and none of the enumerated




[footnote continued from previous page]
determine whether the prior convictions qualify under the resentencing provision, such
issue is appealable. We will review defendant’s appeal.



                                              4
factors disqualifying a defendant for resentencing under Proposition 36 apply.

(§ 1170.126, subd. (e).)

       Section 1170.126, subdivision (e)(3), provides that an inmate is eligible for

resentencing if “[t]he inmate has no prior convictions for any of the offenses appearing in

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of [s]ection 667 or

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of [s]ection 1170.12.”

Defendant here has prior convictions for forcible rape (§ 261, subd. (a)(2)) and

forcible oral copulation of a child under the age of 14 (§ 288a, subd. (c)), which are

sexually violent offenses as defined in Welfare and Institutions Code section 6600,

subdivision (b), as well as offenses listed in sections 667, subdivision (e)(C)(iv)(I), and

1170.12, subdivision (c)(C)(iv)(I). Defendant is therefore ineligible for resentencing

under section 1170.126.

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

independently reviewed the record for potential error and find no arguable issues.




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                                     III

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               RAMIREZ
                                                         P. J.
We concur:



MILLER
                       J.



CODRINGTON
                       J.




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