Filed 3/11/14 P. v. McKinley CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B253306

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. NA035157)
         v.

TERRY SHERVON MCKINLEY,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed.
         California Appellate Project, Jonathan B. Steiner, Executive director, and Richard
B. Lennon, Staff Attorney, under appointments by the Court of Appeal, for Defendant
and Appellant.
         No appearance for Plaintiff and Respondent.


                                        _________________________
       Terry Shevron McKinley appeals from the order of the Los Angeles County
Superior Court denying his petition to recall his sentence under the three strikes law
pursuant to Penal Code section 1170.126.1 The trial court denied the petition on the basis
of McKinley’s prior conviction for attempted murder renders him ineligible for relief
under section 1170.126.
       This court appointed counsel to represent McKinley on appeal. On February 20,
2014, appointed counsel filed a brief raising no issues, asking this court to independently
review the record for arguable appellate contentions under People v. Wende (1979) 25
Cal.3d 436. McKinley was advised of his right to file a supplemental brief within 30
days. He filed a letter brief with the court, seeking relief on the basis his attempted
murder prior conviction occurred in 1984, he has not engaged in violence since that
conviction, his prison record is good, he has no gang issues, and he has served 16 years
on his current commitment.
       We have completed our independent review of the record. Our review of the
record reveals no arguable contentions on appeal.
       McKinley was committed to state prison in 1998 for sale of a controlled substance
in violation of Health and Safety Code section 11352, subdivision (a). Because he had
suffered two prior serious or violent felony convictions, he was sentenced to state prison
pursuant to the three strikes law. His exact sentence is not stated in the record on appeal,
but presumably it was at least 25 years to life in prison.
       Section 1170.126 affords an inmate serving a sentence under the three strikes law
an opportunity to petition the trial court for a reduction in sentence. However, the statute
is expressly inapplicable to an inmate with a prior conviction for “any attempted
homicide offense.” (§§ 667, subd. (e)(2)(C)(iv)(IV), 1170.126, subd. (e)(3).) Because
McKinley has a prior conviction for attempted murder, the superior court correctly
determined he is ineligible, as a matter of law, for relief under section 1170.126.


       1   All statutory references are to the Penal Code, unless otherwise stated.


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      The judgment is affirmed. (Smith v. Robbins (2000) 528 U.S. 259.)




             KRIEGLER, J.




We concur:


             MOSK, Acting P. J.




             MINK, J.*




*      Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.


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