Filed 2/13/14 P. v. Berkley 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059384

v.                                                                       (Super.Ct.No. FMB1000296)

BRAXTON GEORGE BERKLEY,                                                  OPINION

         Defendant and Appellant.



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

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

                                                INTRODUCTION

         On February 25, 2011, a jury found defendant and appellant Braxton George

Berkley guilty of driving under the influence (Veh. Code, § 23152, subd. (a), count 1)

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and driving with a blood-alcohol level of 0.08 percent or more (Veh. Code, § 23152,

subd. (b), count 2). On June 17, 2011, the trial court sentenced defendant to a

determinate term of seven years as follows: six years on count 1; six years on count 2 to

run concurrent with count 1; and one year under Penal Code section 667.5,

subdivision (b). Defendant appealed. In a nonpublished opinion (People v. Berkley

(Sept. 14, 2012, E053903)), we affirmed the judgment, but ordered the sentence on count

2 to be stayed under Penal Code section 654.

       On April 24, 2013, the trial court denied defendant’s petition for rehearing to

modify his sentence stating that the court no longer had jurisdiction. On June 24, 2013,

defendant filed a petition for resentencing under Penal Code sections 1170.12,

subdivision (c)(1), and 667, subdivision (e)(1). On August 1, 2013, the trial court

considered defendant’s petition as a request for resentencing under Penal Code section

1170.126. The court then denied defendant’s petition because the amendment to the

three strikes law (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7, 2012)) applies

only to those cases in which defendant is serving an indeterminate sentence under the

three strikes law. The trial court reasoned that because defendant is serving a determinate

term, and only had one strike, the amendment to the three strikes law did not apply to

defendant.

       On August 9, 2013, defendant filed a notice of appeal from the denial of his

request for modification of sentence.




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                                       ANALYSIS

       After defendant appealed, and upon his 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 to

undertake a review of the entire 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 conducted an independent review of the record and find no arguable issues.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               RICHLI
                                                                                Acting P. J.


We concur:


KING
                          J.


MILLER
                          J.




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