Filed 1/21/14 P. v. Garcia 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058928

v.                                                                       (Super.Ct.No. RIF125592)

PEDRO GARCIA,                                                            OPINION

         Defendant and Appellant.



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

Affirmed.

         Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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          Defendant Pedro Garcia appeals from the superior court’s denial of his motion to

recall his sentence pursuant to Penal Code 1 section 1170.126. As discussed below, we

affirm.

          On March 23, 2006, a jury convicted defendant of assault with a deadly weapon

on a peace officer (§ 245, subd. (c)), two counts of battery against a peace officer (§ 243,

subd. (c)(2)), and two counts of obstructing an executive officer (§ 69).

          Defendant was sentenced under the Three Strikes law to 25 years to life plus five

years for prior convictions.

          Defendant filed a petition to recall his sentence, which the superior court denied

on March 28, 2013. The court found defendant ineligible for resentencing because his

current conviction—assault with a deadly weapon on a peace officer—is a serious felony

listed in section 1192.7, subdivision (c)(11).

          On May 1, 2013, defendant filed a motion for reconsideration, which the court

denied on May 2, 2013. This appeal followed.

                                           DISCUSSION

          Upon defendant’s request, 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, a summary of the

facts and potential arguable issues, and requesting this court conduct an independent

review of the record. The only arguable issue presented by defendant’s counsel was


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


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whether the trial court erred by denying defendant’s petition for resentencing pursuant to

section 1170.126.

       Assault with a deadly weapon on a peace officer is a serious felony. (§ 1192.7,

subd. (c)(11).) Accordingly, defendant is not eligible for resentencing pursuant to section

1170.126, subdivision (e)(1).

       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. Defendant argues the Legislature violated his Equal Protection rights

because: 1) persons convicted of assault with a deadly weapon on a peace officer and

persons convicted of assault with a deadly weapon on any other person are similarly

situated; and 2) there is no rational basis for treating the two types of persons differently.

Our courts have long ago held that the Legislature does not act arbitrarily or capriciously

when it prescribes increased punishment for those who assault a peace officer. (People v.

Beachem (1963) 223 Cal.App.2d 383, 388.) Thus we find defendant’s arguments on this

point to be without merit.

       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.




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                                         DISPOSITION

      The superior court’s ruling is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                       RAMIREZ
                                                                 P. J.


We concur:

HOLLENHORST
                         J.

McKINSTER
                         J.




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