Filed 4/9/15 P. v. Nash 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E062644

v.                                                                       (Super.Ct.No. FSB045154)

JARVIN ONEAL NASH,                                                       OPINION

         Defendant and Appellant.




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

Judge. Affirmed.

         Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Following his conviction by jury of attempted first degree burglary (Pen. Code,

§§ 664/459),1 during which another person was present, and findings by the trial court

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


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that he had suffered two strike priors (§ 667, subds. (b)-(i)), defendant was sentenced to

25 years to life in prison. While serving that term, defendant, in pro per, filed a petition

for recall of his sentence pursuant to section 1170.126, which the trial court denied,

finding that defendant was ineligible because his current conviction is for a serious

felony. Defendant appeals from that order.

       Upon defendant’s request, this court appointed counsel to represent him on appeal.

After examination of the record, 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.

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

he has done.

       In the brief before this court, counsel for defendant listed as potential arguable

issues whether the trial court erred in concluding that defendant was ineligible for recall

of his sentence under section 1170.126 and whether, in light of Proposition 47,

defendant’s current conviction should be reduced to a misdemeanor.

       In his brief, defendant asserts that the facts surrounding his current offense justify

his resentencing under section 1170.126 and under Proposition 47.

                                 ISSUES AND DISCUSSION

       Section 1170.126 provides, in pertinent part, “(b) Any person serving an

indeterminate term of life imprisonment imposed pursuant to paragraph (2) of



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subdivision (e) of Section 667 . . . upon conviction . . . of a felony . . . that [is] not defined

as serious . . . by subdivision (c) . . . of Section 1192.7, may file a petition for a recall of

sentence . . . [¶] . . . [¶] (e) An inmate is eligible for resentencing if: [¶] (1) The

inmate is serving an indeterminate term of life imprisonment imposed pursuant

to . . . subdivision (e) of Section 667 . . . for a conviction of a felony . . . that [is] not

defined as serious . . . by subdivision (c) . . . of Section 1192.7.” Section 1192.7,

subdivision (c) provides, in pertinent part, “As used in this section, ‘serious felony’

means any of the following: [¶] . . . [¶] (18) burglary of the first degree . . . [¶] . . .

[¶] (39) any attempt to commit a crime listed in this subdivision other than assault . . . .”

       Because defendant’s current offense was for attempted first degree burglary, the

trial court did not err in concluding that he was ineligible for recall of his sentence under

section 1170.126.

       Proposition 47, embodied, in part, in section 1170.18, provides, as is pertinent

here, “(a) A person currently serving a sentence for a conviction . . . of a felony . . . who

would have been guilty of a misdemeanor under the act . . . had this act been in effect at

the time of the offense may petition for a recall of sentence . . . to request resentencing in

accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or

Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have

been amended or added by this act.” None of those sections apply to the crime of first

degree burglary, therefore, defendant is not eligible for resentencing as a misdemeanant

under section 1170.18.



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       Given the foregoing, the facts surrounding defendant’s current crime are irrelevant

to the determination that he is ineligible for a recall of sentence under either sections

1170.126 or 1170.18.

       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.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                 RAMIREZ
                                                                                            P. J.


We concur:

McKINSTER
                           J.

KING
                           J.




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