Filed 1/15/14 P. v. Montanez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059246

v.                                                                       (Super.Ct.No. FVA06563)

GILBERT ANDREW MONTANEZ,                                                 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.

         Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Gilbert Andrew Montanez appeals after the trial court

denied his petition for resentencing under Penal Code section 1170.126, known as the



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Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7,

2012)).1 Defendant filed a notice of appeal on July 24, 2013. We affirm.

                               PROCEDURAL BACKGROUND

         Defendant was charged by amended felony complaint with one count of first

degree residential burglary. (§ 459.) The amended complaint also alleged that defendant

suffered a prior conviction of first degree burglary (§§ 1170.12, subds. (a)-(d), 667,

subds. (b)-(i)), and that he had served a prior prison term (§ 667.5, subd. b). Defendant

pled guilty to the first degree residential burglary charge. (§ 459.) On May 30, 1997,

after denying defendant’s Romero2 motion, the court sentenced him to state prison for 25

years to life.3 (§ 667, subd (e)(2).)

         On May 9, 2013, defendant filed an in pro. per. petition for resentencing under

section 1170.126. The court denied the petition on the ground that defendant’s current

conviction for first degree residential burglary (§ 459) made him ineligible for

resentencing under section 1170.126, subdivision (e)(1).




         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

         2   People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

         3 We note that, although the limited record in this appeal does not clearly reflect
so, the trial court found true the allegations that defendant had two prior strike
convictions. (See People v. Montanez (Sept. 8, 1998, E020850) [nonpub. opn.].)


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                                        ANALYSIS

       After the notice of appeal was filed, this court appointed counsel to represent

defendant. 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 [87 S.Ct. 1396, 18 L.Ed.2d

493], setting forth a statement of the case, a brief statement of the facts, and identifying

one potential arguable issue: whether the court erred in denying his petition for

resentencing under section 1170.126.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has not done. Under 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


                                                                 HOLLENHORST
                                                                                               J.


We concur:


RAMIREZ
                        P. J.


CODRINGTON
                           J.




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