Filed 11/20/13 P. v. Sterling 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059034

v.                                                                       (Super.Ct.No. RIF097911)

ROY CLIFTON STERLING,                                                    OPINION

         Defendant and Appellant.




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

Affirmed.

         Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Roy Clifton Sterling 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

                             PROCEDURAL BACKGROUND

       On December 20, 2001, a jury found defendant guilty of possessing a counterfeit

bill. (§ 476.) In a bifurcated bench trial, the trial court found true that defendant had

suffered two prior strike convictions (§§ 667, subds. (c) & (e), 1170.12, subd. (c)) for

second degree murder in 1978 and assault with a firearm in 1988, and that defendant had

served four prior prison terms (§ 667.5, subd. (b)). On May 3, 2002, after the trial court

denied defendant’s motion to strike one of his prior strike convictions, defendant was

sentenced to a total indeterminate term of 25 years to life in state prison under the three

strikes law.

       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

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).)

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


                                              2
       On May 13, 2013, defendant filed in pro. per. a petition for resentencing under

section 1170.126. The trial court denied the petition on May 21, 2013, finding defendant

ineligible for resentencing under section 1170.126. Defendant filed a timely notice of

appeal.

                                            III

                                      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 one potential arguable issue: whether the trial court erred in

finding defendant ineligible for resentencing under section 1170.126.

       Section 1170.126, applies exclusively to those “persons presently serving an

indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of

Section 667 or paragraph (2) of subdivision (c) of Section 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 enumerated factors disqualifying a defendant for

resentencing under Proposition 36 apply. (§ 1170.126, subd. (e).)



                                             3
       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 Section 667 or

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.”

Defendant here has a prior conviction for second degree murder, an offense listed in

sections 667, subdivision (e)(C)(iv)(IV), and 1170.12, subdivision (c)(C)(iv)(IV).

Defendant was therefore ineligible for resentencing under section 1170.126.

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

                                             II

                                      DISPOSITION

       The order is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RAMIREZ
                                                                                        P. J.


We concur:


RICHLI
                          J.


CODRINGTON
                          J.


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