Filed 10/4/16 P. v. Wilson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E066154

v.                                                                      (Super.Ct.No. FRE02066)

MUNFORD PAUL WILSON,                                                    OPINION

         Defendant and Appellant.




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

Judge. Affirmed.

         Munford Wilson, in pro. per.; and Jill Kent, under appointment by the Court of

Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         On February 13, 1997, a jury convicted defendant and appellant, Munford Paul

Wilson, of first degree burglary. The court thereafter found true allegations defendant




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had sustained two prior serious felony convictions (Pen. Code, § 667, subd. (a)(i))1 for

first degree burglary and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12,

subds. (a)-(d)) for first degree burglary. The court sentenced defendant to 35 years to

life. On January 8, 2016, defendant filed a petition for resentencing pursuant to section

1170.126. On April 17, 2016, the court denied defendant’s petition, finding defendant’s

commitment offense rendered him ineligible for resentencing and that the petition was

untimely.

       After defendant filed a notice of appeal, 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

and identifying one potentially arguable issue: whether a defendant whose third strike is

for first degree burglary is eligible for resentencing pursuant to section 1170.126.

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

he has done. Defendant contends the jury erroneously convicted him of a violent felony

by rendering a finding an individual was present in the home at the time he committed the

burglary. We affirm.




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


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                               I. FACTUAL HISTORY2

      The victim was driving home from work at 4:45 p.m. on September 19, 1996. As

she approached her home in Redlands, the victim saw defendant riding a bicycle down

her driveway. On the handlebars of his bicycle, she saw her brown suitcase with her

VCR inside. Her camcorder case was on defendant’s right shoulder. The case contained

her two video cameras. Her dog was chasing defendant down the driveway. The dog had

been secured in the backyard when she left that morning.

      The victim followed defendant down the street. She happened to be on her

cellular phone with the police when she saw defendant, so she described defendant and

the direction of his travel. An officer responded to the call. He saw defendant on a

bicycle with the victim following him. The officer ordered defendant to stop, but

defendant said, “No, no, no.” The officer again ordered defendant to stop, and defendant

got off the bike and began running. Defendant dropped the suitcase, camera bag, and a

gym bag. The officer chased defendant.

      When defendant got off the bicycle, a flashlight fell out of defendant’s pocket.

When the officer took defendant into custody, he found a white sock and a screwdriver in

defendant’s pocket. Officers also found gloves in the path defendant took when he was

fleeing. The white gloves had rust stains on them.




      2  We take judicial notice of our opinion in case No. E020257, defendant’s direct
appeal from his conviction in the instant case. (Evid. Code, § 459, subd. (a).) We derive
our factual history from this opinion.


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       The outside door of the victim’s home which led into her bathroom and the door

leading from the bathroom to the rest of the house had both been removed from their

hinges. Those two doors, the dining room sliding glass door and the kitchen door, had

pry marks on them. The victim’s jewelry box had been moved from the bedroom to the

kitchen table. A tire iron and a rusty pry bar, both of which did not belong to the victim,

were found in her backyard, against her house next to the garage.

       Officers found shoe prints on the same side of the house where the pry bar was

found. The shoe prints matched the shoes worn by defendant. Additionally, some of the

pry marks were consistent with having been made by the pry bar, the tire iron, and the

screwdriver found on defendant’s person. Finally, a pink, heart-shaped sticker was found

on the bottom of defendant’s shoe. The victim testified that her daughter kept those

stickers in her sticker collection between the dining room and living room and that the

stickers frequently got on the floor.

       On appeal from the judgment, defendant raised two issues: (1) whether the

instruction of the jury with CALJIC No. 2.15 providing that the discovery of defendant in

conscious possession of recently stolen property could support an inference of

defendant’s guilt in the crime of burglary if supported by corroborating evidence violated

defendant’s due process rights; and (2) whether the court erred in using the same prior

felony conviction to support one of the prior serious felony allegations and the prior

strike conviction allegation. We affirmed.




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                                     II. DISCUSSION

       Defendant contends the jury erroneously found a person was present during his

commission of the burglary; thus, rendering his offense a violent felony pursuant to

section 667.5, subdivision (c)(21) and making him ineligible for resentencing pursuant to

section 1170.126.

       First, the People never charged, and the jury never found true, any allegation that a

person was present when defendant committed the burglary. Indeed, the facts as stated

above reflect that the victim was returning home after defendant had already committed

the burglary. Thus, the issue is irrelevant for purposes of defendant’s petition for

resentencing. Second, even if the jury had erroneously found a person was present when

defendant committed the burglary this would not change the fact that defendant’s

conviction for first degree burglary would remain a serious felony, still rendering him

ineligible for resentencing pursuant to section 1170.126, subdivision (b). (§ 1192.7,

subd. (c)(1) [burglary of the first degree is a serious felony].) Third, again, even if the

jury had erroneously found a person was present when defendant committed the burglary,

defendant should have raised the issue in his direct appeal from the judgment. (See In re

Dixon (1953) 41 Cal.2d 756, 759 [“The general rule is that . . . in the absence of special

circumstances constituting an excuse for failure to employ [the proper] remedy, [a

subsequent appeal] will not lie where the claimed errors could have been, but were not,

raised upon a timely appeal from a judgment of conviction.”].) Thus, defendant forfeited

the issue by not raising it in his appeal from the judgment.



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       Here, defendant was ineligible for resentencing because he stood convicted in the

instant case of first degree burglary, a serious felony. (§§ 1170.126, subd. (b), 1192.7,

subd. (c)(1).) Moreover, defendant failed to file his petition within two years of the

effective date of the act, November 7, 2012, and failed to show good cause for filing his

petition late. (§ 1170.126, subd. (b).) Thus, the court acted properly by denying

defendant’s petition for resentencing. 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.

                                    III. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                McKINSTER
                                                                                            J.


We concur:

RAMIREZ
                        P. J.

SLOUGH
                           J.




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