Filed 9/27/13 P. v. McKinnie CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C070227

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F07291)

         v.

CHRISTOPHER CHARLES MCKINNIE,

                   Defendant and Appellant.




         Defendant Christopher Charles McKinnie pled no contest to possession of cocaine
base for sale (count 1; Health & Saf. Code, § 11351.5) and transportation of cocaine base
(count 2; Health & Saf. Code, § 11352, subd. (a)), and admitted two prior strikes and two
prior prison terms (Pen. Code,1 §§ 667, subds. (b)-(i), 667.5, subd. (b)).
                                                 BACKGROUND
         On November 7, 2010, law enforcement officers stopped defendant’s car. As he
got out of the car, he struggled with the officers. On the ground, next to the driver’s side



1   Further undesignated section references are to the Penal Code.

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door of the car, the officers saw a baggie which contained individually wrapped rocks of
cocaine.
        Defendant pled as described ante. After denying defendant’s motion to strike his
strikes, the trial court sentenced him to a state prison term of 27 years to life on count 1
(25 years to life based on the two prior strikes, plus two years for the prior prison terms),
with the same term imposed but stayed as to count 2.
        Defendant’s appellate counsel originally filed a Wende2 brief. On November 30,
2012, counsel moved to strike the Wende brief and to file a standard brief for appellant.
This court granted the motion on December 7, 2012.
                                       DISCUSSION
        Defendant contends that in light of the voters’ approval of Proposition 36 (the
Three Strikes Reform Act of 2012) on November 6, 2012 (codified as § 1170.126), and
the principles established in People v. Estrada (1965) 63 Cal.2d 740, he is entitled to
automatic, nondiscretionary resentencing as to his strikes. He requests remand to the trial
court with directions to vacate his sentence and to impose a determinate sentence
pursuant to the amended Three Strikes law. The People oppose defendant’s request.
        The Fifth Appellate District of this court rejected the same argument defendant
makes here in an opinion directly on point to the instant case. (People v. Yearwood
(2013) 213 Cal.App.4th 161 (Yearwood).) In Yearwood, the appellate court held that
section 1170.126 requires a defendant seeking resentencing to file a petition for recall in
the trial court and that the application of Proposition 36 prospectively only does not
violate defendant’s right to equal protection. (Yearwood, supra, 213 Cal.App.4th at pp.
176-179.) For the reasons articulated in Yearwood, we reject defendant’s argument.3


2   People v. Wende (1979) 25 Cal.3d 436.
3We note this issue is currently before our Supreme Court pending review. (People v.
Conley (2013) 215 Cal.App.4th 1482; People v. Lewis (2013) 216 Cal.App.4th 468.)

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       We have separately identified a typographical error in the abstract of judgment
that continues in the amended abstract filed July 19, 2012. We shall order correction of
the abstract of judgment accordingly.
                                      DISPOSITION
       The judgment is affirmed. The clerk of the trial court is directed to correct the
statutory cite accompanying the main jail classification fee to show that the fee was
ordered pursuant to Government Code section 29550.2 and to forward a certified copy of
the corrected abstract to the Department of Corrections and Rehabilitation.



                                                     DUARTE                   , J.



We concur:



        BUTZ                      , Acting P. J.



        MURRAY                     , J.




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