Filed 6/16/15 P. v. Castaneda 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E062547

v.                                                                       (Super.Ct.No. RIF098886)

CESAR CORTEZ CASTANEDA,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Cesar Cortez Castaneda, in pro. per.; Joanna McKim, under appointment by the

Court of Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.




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                                              I

                              STATEMENT OF THE CASE

       In 1982, defendant and appellant Cesar Cortez Castaneda was charged with

committing robbery, a violation of Penal Code section 211;1 he was ultimately convicted

and sentenced on that case. In 1999, defendant pled guilty to committing another robbery

under Penal Code section 211. On August 25, 2005, defendant was convicted on two

counts of attempted carjacking under Penal Code sections 215, subdivision (a), and 664.

He also pled guilty to possession of a controlled substance under Health and Safety Code

section 11350. Defendant received a sentence of 35 years to life in state prison under the

“Three Strikes” law under Penal Code sections 1170.12, subdivisions (a) through (d), and

667, subdivisions (b) through (i).

       On November 3, 2014, defendant filed an in propria persona petition for

resentencing under Proposition 36, the Three Strikes Reform Act of 2012, section

1170.126. On November 3, 2014, the trial court denied defendant’s petition on the

ground that “defendant’s criminal history makes him[] ineligible for resentencing because

he was convicted of 664/215 [attempted carjacking] PC, a strike offense.”

       Defendant filed timely notices of appeal from the denial of his motion under

section 1170.126.




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

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                                           II2
                                        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.

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

has done so. Defendant has filed a one-page handwritten brief. In his brief, he requests a

60-day extension to file another supplemental brief. Defendant also requests new counsel

since his current appellate counsel filed a Wende brief and did not raise any substantive

issues. In essence, defendant is arguing ineffective assistance of counsel (IAC). We

shall address defendant’s brief.

       First, we note that there is no need to grant a 60-day extension for further briefing.

Here, the only issue is whether the trial court erred in denying defendant’s section

1170.126 motion. The trial court found that “defendant is ineligible for resentencing

pursuant to PC 1170.126. . . . Defendant’s criminal history makes him ineligible for

resentencing because he was convicted of 664/215 PC a strike offense.”

       Section 1170.126 provides, in pertinent part, “(b) Any person serving an

indeterminate term of life imprisonment imposed pursuant to paragraph (2) of

       2 The facts of the underlying case are not relevant because the only issue on
appeal relates to defendant’s sentence.

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subdivision (e) of Section 667 . . . upon conviction . . . of a felony . . . that [is] not defined

as serious . . . by subdivision (c) . . . of Section 1192.7, may file a petition for a recall of

sentence . . . [¶] . . . [¶] (e) An inmate is eligible for resentencing if: [¶] (1) The

inmate is serving an indeterminate term of life imprisonment imposed pursuant

to . . . subdivision (e) of Section 667 . . . for a conviction of a felony . . . that [is] not

defined as serious . . . by subdivision (c) . . . of Section 1192.7.” Section 1192.7,

subdivision (c) provides, in pertinent part, “As used in this section, ‘serious felony’

means any of the following: [¶] . . . (27) carjacking . . . (39) any attempt to commit a

crime listed in this subdivision other than assault . . . .”

       Because defendant’s current offense was for attempted carjacking, the trial court

did not err in concluding that he was ineligible for recall of his sentence under section

1170.126. Therefore, there is no need for an extension of time for defendant to file

another supplemental brief.

       Moreover, defendant essentially argues that counsel provided IAC for filing a

Wende brief instead of presenting substantive arguments on appeal and requests new

appellate counsel. Defendant’s argument is without merit because under the mandate of

People v. Kelly (2006) 40 Cal.4th 106, we have to independently review the record for

potential error. Simply filing a Wende brief does not deem a counsel’s performance as

ineffective. Furthermore, as provided above, defendant is ineligible for resentencing

under section 1170.126. There was nothing for counsel to argue on behalf of defendant

regarding the trial court’s denial of his section 1170.126 motion.



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       We have examined the entire record and are satisfied that no arguable issues exist,

and that defendant has, by virtue of counsel’s compliance with the Wende procedure and

our review of the record, received adequate and effective appellate review of the

judgment entered against him in this case. (People v. Kelly, supra, 40 Cal.4th 106.)


                                            III

                                     DISPOSITION

       The trial court properly denied defendant’s petition for resentencing. The trial

court’s order is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               McKINSTER
                                                                                          J.

We concur:


RAMIREZ
                        P. J.


MILLER
                             J.




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