Filed 12/4/15 P. v. Hill CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                             B263135

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. YA078617)
         v.

TONY LEE HILL,

         Defendant and Appellant.



         APPEAL from a order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
         Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                              _____________________________________
       Defendant Tony Lee Hill appeals from an order dismissing his petition to recall
his sentence and for resentencing under Proposition 36, the Three Strikes Reform Act of
2012. (Pen. Code, § 1170.126.)1 The order is affirmed.


                   FACTUAL AND PROCEDURAL BACKGROUND
       Following a jury trial, defendant was convicted of second degree robbery and
found to have suffered nine prior serious or violent felony convictions or juvenile
adjudications. (§§ 211, 667, subd. (b)-(i), 1170.12, subds. (a)-(d).) He received a state
prison sentence of 25 years to life. He appealed from the judgment of conviction, which
this court affirmed in 2013. (People v. Hill (Nov. 4, 2013, B243919) [nonpub. opn.].)
       In November 2012, the voters adopted Proposition 36, which amended the Three
Strikes law by limiting the imposition of an indeterminate life sentence to those
defendants whose third felony is defined as serious or violent under sections 667.5 or
1192.7. The initiative allowed those serving a life sentence for a third felony that is not
defined by those sections as serious or violent to petition for a recall of sentence and
request resentencing. (§ 1170.126, subd. (b).)
       Defendant filed a petition to recall his sentence and for resentencing in September
2013. The trial court found him ineligible for resentencing because robbery is defined as
a violent felony by subdivision (c)(9) of section 667.5. His petition was dismissed with
prejudice, and this appeal followed.
       Defendant’s attorney filed a Wende2 brief, stating that he had thoroughly reviewed
the record to determine whether it contained any arguable issues. We issued a letter
directing counsel to send the record and a copy of the opening brief to defendant, and
inviting defendant to submit a supplemental brief or letter. Defendant filed a
supplemental brief, which we have read and considered.



       1   All further undesignated statutory references are to the Penal Code.

       2   People v. Wende (1979) 25 Cal.3d 436.
                                               2
                                         DISCUSSION
       In his supplemental brief, defendant provides four documents that do not appear in
the record on appeal: (1) a “Supplemental Petition for Recall of Sentence and Re-
Sentencing Pursuant to Penal Code § 1170.126 (Memorandum of Points and Authorities)
Miscarriage of Justice”; (2) a “Declaration of Indigency”; (3) a “Request for Copying
Service . . .”; and (4) a declaration of proof of service. Defendant claims that he mailed
these documents from Wasco State Prison to the superior court on March 12, 2014, the
documents were never returned to him, and he does not know why they were omitted
from the record on appeal. Significantly, he does not state that these documents were
filed or lodged in the superior court.
       Although an appellate court may augment the record with documents that were
filed or lodged in the case in superior court (Cal. Rules of Court, rule 8.155(a)(1)(A)),
augmentation is inappropriate where, as here, there is no evidence that the documents
were filed or lodged in the superior court. In anticipation of a claim of ineffective
assistance of counsel, we note that our independent review of the documents revealed
nothing that arguably would have led to a more favorable result.
       The supplemental brief raises many arguments, but none that refutes the trial
court’s dispositive ruling that robbery is defined as a violent felony by subdivision (c)(9)
of section 667.5. Because that determination is correct as a matter of law, defendant is
incapable of establishing error.
       Having reviewed the record and materials supplied by defendant, we are satisfied
that counsel has fully complied with his responsibilities and that no arguable appellate
issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006)
40 Cal.4th 106, 110.)




                                             3
                              DISPOSITION
     The order is affirmed.
     TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                       EPSTEIN, P. J.
We concur:



     WILLHITE, J.



     MANELLA, J.




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