Filed 7/10/14 P. v. Martinez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065343

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD144092)

JUAN C. MARTINEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.


         Appellate Defenders, Inc. and Patricia Ihara, for Defendant and Appellant.

         No appearance by Plaintiff and Respondent.

                                      PROCEDURAL BACKGROUND

         In July 1999 a jury found Juan C. Martinez guilty of four felonies: assault with a

deadly weapon (Pen. Code, § 245, subd. (a)(1))1; assault with force likely to produce



1        All subsequent undesignated statutory references are to the Penal Code.
great bodily injury (§ 245, subd. (a)(1)); and two counts of attempted unlawful taking of a

vehicle (§ 664; Veh. Code, § 10851, subd. (a)). In connection with the assault charges,

the jury found appellant had personally used a deadly weapon (§ 1192.7, subd. (c)(23))

and inflicted great bodily injury upon a person who was not an accomplice (§ 12022.7,

subd. (a)). The jury also found appellant guilty of three misdemeanors as lesser included

offenses of three other charged felonies.

       In a bifurcated proceeding, the jury found true allegations defendant had suffered

four prior felony convictions: unlawful taking of a vehicle (Veh. Code, § 10851); escape

(§ 4532, subd. (b)(1)); and two robberies (§ 211) (serious/violent felony prior convictions

within the meaning of section 667, subdivisions (b) through (i)). After dismissing the

jury, the court found true allegations defendant had suffered a serious felony prior

(§§ 667, subd. (a)(1), 1192.7, subd. (c)(19)); a prison prior (§ 667.5, subd. (b)); and a no

probation prior (§ 1203, subd. (e)(4)).

       The court sentenced appellant to 33 years to life: 25 years to life to run

concurrently for the four felonies; three years consecutively for the great bodily injury

enhancement; five years consecutively for the prior serious felony conviction; and a 140-

day concurrent jail term for the three misdemeanors.

       In November 2013, appellant, acting in propria persona, filed a motion for

resentencing pursuant to the recently enacted Three Strikes Reform Act of 2012




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(§ 1170.126 et seq.) (Act).2 The court deemed the motion a petition for recall of

sentence and denied it without prejudice. The court found that because appellant had

been convicted of two serious and/or violent felonies (assault with personal use of a

deadly weapon and assault with the infliction of great bodily injury) he was ineligible for

resentencing. The court also noted that as part of his current commitment, appellant had

received two concurrent 25-years-to-life sentences for each of the attempted vehicle theft

convictions and appointed counsel to determine what rights, if any, appellant might have

under the Act. In December, appointed counsel advised the court she had concluded it

would not be in appellant's "best interest" to file a petition to recall the sentence.

                                        DISCUSSION

       Appointed appellate counsel has filed a brief summarizing the facts and

proceedings below. Counsel presents no argument for reversal but asks that this court

review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.

Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to two possible but

not arguable issues: (1) whether the court erred in concluding appellant did not qualify

for recall of sentence and resentencing under the Act, and (2) whether appointed counsel




2      In his motion, appellant states he was committing an automobile burglary when
the owner approached and attacked him. According to appellant, he defended himself
and maintained the owner was not injured in the ensuing "fist fight." Although this is the
only information in the record concerning the incident underlying his convictions, it is
inconsistent with the jury's guilty verdicts and the great bodily injury and personal use of
a deadly weapon findings. Appellant filed a prior appeal in this case: D034261. That
appeal, which related solely to a sentencing issue, does not include a statement of facts
concerning the underlying crimes.
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was ineffective for failing to file a petition for recall of the two concurrent 25-years-to

life sentences on the attempted vehicle thefts.

       We granted appellant permission to file a brief on his own behalf. He has not

responded.

       A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and

Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by

appellate counsel, has disclosed no reasonable arguable appellate issues. Competent

counsel has represented appellant on this appeal.

                                       DISPOSITION

       The judgment is affirmed.




                                                                                 HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



IRION, J.




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