Filed 9/24/13 P. v. Reliford 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058274

v.                                                                       (Super.Ct.No. FVI07304)

HUEY RELIFORD,                                                           OPINION

         Defendant and Appellant.



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

Judge. Affirmed.

         Patrick DuNah, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant, Huey Reliford, is serving six years plus 25 years to life after a jury

convicted him as a third-striker in 1998 of burglarizing the home of a woman from his

church. Defendant appeals from the superior court’s order denying his petition for recall




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of sentence under Penal Code section 1170.126.1 As discussed below, we affirm the

court’s order.

                                  FACTS AND PROCEDURE

       In January of 1997, defendant burglarized the home of a woman who attended the

church where he was a minister. Defendant apparently broke the window from the

outside, then reached to unlock the window. Defendant’s fingerprints were found on the

broken glass inside the victim’s apartment.

       On September 21, 1998, a jury convicted defendant of first degree residential

burglary (§ 459). Also found true were allegations that defendant had a serious prior

felony (§ 667, subd. (a)(1)), a one-year prison prior (§ 667.5, subd. (b)), two strike priors

(§§ 667, subds. (b) – (i) & 1170.12, subds. (a) – (d)).

       On July 2, 1999, the trial court sentenced defendant to five years for the serious

prior felony, plus one year for the prison prior, to be followed by 25 years to life for the

third strike.

       On December 14, 2012, defendant filed a pro per petition for resentencing under

section 1170.126. On January 14, 2013, the superior court denied the petition because

defendant did not satisfy the criteria in subdivision (e) that his current commitment

offense not be for a serious felony listed in section 1192.7, subd. (c). This appeal

followed.




       1   All section references are to the Penal Code unless otherwise indicated.


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                                        DISCUSSION

       After the notice of appeal was filed, this court appointed counsel to represent

defendant. 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 [87 S.Ct. 1396, 18 L.Ed.2d

493], setting forth a statement of the case, a brief summary of the facts, and identifying

one potential arguable issue: did the trial court err in denying defendant’s petition for

recall of sentence under Penal Code section 1170.126?

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has done. Defendant sets forth two grounds for appeal. First, he asks this court to

appoint “competent and willing counsel” to raise and litigate whether defendant should

have been convicted of second degree burglary rather than first degree burglary, given

that the victim, according to defendant “was terminally ill, and had went to Las Vegas to

be with her son in her final days and had told church members that she wasn’t likely to

return.” Defendant claims his trial counsel declined to raise this issue because his

knowledge that the victim was out of town might make him look guilty in the eyes of the

jury. This appears to us to be a matter of trial tactics and strategy, which we will not

second-guess, even if it were a proper subject for this appeal. (People v. Davenport

(1995) 11 Cal.4th 1171, 1237.)

       Defendant’s second ground for appeal is that he is actually innocent and has

recently obtained new evidence that would boost his claim to police that he had touched

and left fingerprints on the window at the victim’s apartment on an occasion other than

during the burglary. Because this “new evidence” is outside the record on appeal, it


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should be brought in a petition for writ of habeas corpus. (In re Richards (2012) 55

Cal.4th 948.)

       Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues.

                                       DISPOSITION

       The trial court’s ruling denying defendant’s petition for recall of resentence under

section 1170.126 is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                       P. J.


We concur:

HOLLENHORST
                          J.

KING
                          J.




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