Filed 11/20/13 P. v. Payan 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058949

v.                                                                       (Super.Ct.No. FWV024819)

ROBERT CRUZ PAYAN,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. Affirmed.

         Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and

Apellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       Defendant Robert Cruz Payan 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.

                                       BACKGROUND

       Defendant was convicted in February 2003 of possessing a controlled substance

(Health & Saf. Code, § 11377, subd. (a)). It was also found true that defendant had

sustained two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and three prison

priors (§ 667.5, subd. (b)).

       In April 2003, the court sentenced defendant to 28 years to life in state prison.

       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).)

       Section 1170.126, subdivision (e)(3) provides, as pertinent here, that a defendant

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


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


                                              2
Section 1170.12.” Defendant’s convictions include lewd and lascivious acts against a

child under the age of 14 years (§ 288, subd. (a)). A violation of section 288 against a

child under the age of 14 years is defined as a serious felony pursuant to sections 667,

subdivision (e)(2)(C)(iv)(III) and 1170.12, subdivision (c)(2)(C)(iv)(III). As such,

defendant was ineligible for resentencing under section 1170.126, subdivision (e)(3).

       The court denied the petition, finding that defendant’s strikes included a

conviction for section 288, subdivision (a), which made him ineligible for resentencing.

Defendant filed a timely notice of appeal.

                                       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. 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.




                                             3
                                    DISPOSITION

     The order denying defendant’s petition for recall is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                             RAMIREZ
                                                                       P. J.


We concur:

RICHLI
                        J.

CODRINGTON
                        J.




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