Filed 3/18/14 P. v. Jordan 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059151

v.                                                                       (Super.Ct.No. PEF06350)

WES KERRI JORDAN,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michelle D. Levine,

Judge. Affirmed.

         Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                                             I

                                    INTRODUCTION

        On October 16, 1998, an amended information charged defendant and appellant

Wes Kerri Jordan with possession of a controlled substance for sale under Health and

Safety Code section 11351.5 (count 1); selling or transporting a controlled substance

under Health and Safety Code section 11352, subdivision (a) (count 2); and possession of

a controlled substance while armed with a loaded operable firearm under Health and

Safety Code section 11370.1 (count 3). The complaint also alleged three enhancements

for prior serious felony convictions under Penal Code sections 667 and 1170.12.

        On March 31, 1999, a jury found defendant guilty of sale or transportation of a

controlled substance; possession of a controlled substance while armed; and simple

possession, a lesser included offense of possession for sale. The court found the three

serious felony priors to be true. Defendant was sentenced to a total term of 25 years to

life.

        On February 27, 2013, defendant petitioned for recall of his sentence under Penal

Code section 1170.126 and resentencing under the Second Strike law. The trial court

denied the petition. Defendant filed a timely appeal.

                                             II

                               STATEMENT OF FACTS

        A.    Prior Case

        On August 30, 1997, defendant was pulled over for having a broken tail light. He

did not have a driver’s license and he was on parole. In a pat-down search, the police

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officer found a rock of cocaine weighing about 1/2 gram in defendant’s pocket.

Defendant agreed to sit in the back of the patrol car while the police officer searched his

car. Defendant told the officer that he would find guns and more drugs in the vehicle.

The search turned up 23 grams of rock cocaine, a loaded nine-millimeter gun, a .22-

caliber Baretta and ammunition. The guns were under the floor mat on the driver’s side

of the car. The police officer also found a pager and $847 in cash. When confronted,

defendant spontaneously stated, “Hey man, I was honest with you, the dope’s mine, but

the guns are my girlfriend’s, do you think you can cut me a break.”

       On March 31, 1999, a jury found defendant guilty of possession of a controlled

substance, sale or transportation of a controlled substance, and possession of a controlled

substance while armed. The court found the three serious felony priors to be true.

       On April 20, 1999, in a pre-sentencing probation interview, defendant denied that

he had told the police they would find guns and drugs in the car. The car and the guns

belonged to someone else. Defendant did not deny that the items were found in the car,

but he believed a life sentence for mere possession was too harsh.

       Defendant was sentenced under the Three Strikes law to a total term of 25 years to

life. On May 5, 1999, defendant filed a notice of appeal.1 In Case No. E024898, on

February 29, 2000, we affirmed the judgment with directions to amend the abstract of




       1 At the recall hearing, the parties and the trial court were under the mistaken
belief that this case was never appealed.


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judgment to reflect a conviction by a jury trial instead of a court trial and other matters

regarding fines.

       B.     Resentencing Proceedings

       On February 27, 2013, defendant, represented by counsel, petitioned for recall of

his sentence and resentencing as a second striker under Penal Code section 1170.126.

The court denied the petition because defendant’s current offense, possession of a

controlled substance while armed under Health and Safety Code section 11370.1, was a

serious or violent felony that rendered defendant ineligible for resentencing under Penal

Code section 1170.126, subdivision (e)(1). Having reached this conclusion of

ineligibility, the trial court did not consider, under Penal Code section 1170.126,

subdivision (e)(2), whether the current offense (possession while armed) was one in

which defendant “used a firearm” or “was armed with a firearm or deadly weapon”

within the meaning of Penal Code sections 667, subdivision (e)(2)(C)(iii) and 1170.12,

subdivision (c)(2).

                                              III

                                        ANALYSIS

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. 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

to undertake a review of the entire record.



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

has not done 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.

                                          IV

                                    DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                             RICHLI
                                                                                          J.

We concur:


RAMIREZ
                      P. J.


HOLLENHORST
                         J.




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