Filed 5/28/15 P. v. Lombardi CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067268

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD177650)

PAUL JOSEPH LOMBARDI,

         Defendant and Appellant.


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

Danielsen, Judge. Affirmed.

         Anna M. Jauregui-Law, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.

         In July 2005, Paul Joseph Lombardi was convicted of attempted kidnapping (Pen.

Code,1 §§ 207, subd. (a) & 664). He was sentenced to prison in August 2005 as a third

strike offender for an indeterminate term.



1        All further statutory references are to the Penal Code unless otherwise specified.
       In November 2014, Lombardi filed a petition to recall his sentence under section

1170.126 (Proposition 36). The trial court denied the petition as untimely. The trial

court held that even if the petition was timely filed the petition should be denied because

Lombardi's commitment offense was a serious felony as defined in section 1192.7,

subdivision (c)(20) and (c)(39), thereby making him ineligible for resentencing.

       Lombardi filed a timely notice of appeal.

       Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25

Cal.3d 436 (Wende) indicating she has been unable to identify any reasonably arguable

issues for reversal on appeal. Counsel requests this court review the record for error as

mandated by Wende.2

                                      DISCUSSION

       We have reviewed the entire record as required by Wende, supra, 25 Cal.3d 436.

In compliance with Anders v. California (1967) 386 U.S.738 (Anders), appellate counsel

has provided two possible, but not reasonably arguable issues for our consideration:

       1. Whether Lombardi's petition was timely filed since it was mailed by a prison

official on October 19, 2014?

       2. Whether Lombardi's commitment offense disqualified him from resentencing

under section 1170.126?

       Lombardi has filed a supplemental brief in his appeal. He contends his petition

was timely filed since he gave it to the appropriate prison authorities on October 19,


2      Given the very limited nature of this appeal we will not include a statement of
facts.
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2014. Thus he argues his filing was timely even though the petition was not filed with

the superior court until after November 6, 2014. In addition, Lombardi contends the

court erred in finding that attempted kidnapping was a serious felony. He argues section

1192.7, subdivision (c) is ambiguous and we should find his offense was not a serious

felony.

       We will assume for the purposes of this appeal the trial court erred in finding the

petition untimely. Instead we will focus on Lombardi's challenge to the characterization

of his commitment offense.

       Section 1192.7, subdivision (c) and its subparts define serious felonies for

purposes of recall of three strikes sentences under section 1170.126. Section 1192.7

provides in part: "(c) As used in this section, 'serious felony' means any of the following:

. . . (20) kidnapping . . . (39) any attempt to commit a crime listed in this subdivision

other than an assault."

       Respectfully there is nothing ambiguous or confusing in the statute as it applies to

this case. The plain meaning is that kidnapping is a serious felony. An attempt to

commit kidnapping is therefore a serious felony as well. There is no principle of

statutory construction that would support an argument that attempted kidnapping is not a

serious felony. Thus, even if Lombardi's petition was timey filed, he is not eligible for

resentencing under section 1170.126 because his commitment offense is a serious felony.

       We have reviewed the entire record and Lombardi's supplemental brief. Our

review of the record has not revealed any reasonably arguable issues for reversal on

appeal. Competent counsel has represented Lombardi on this appeal.

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                                DISPOSITION

    The judgment is affirmed.




                                              HUFFMAN, J.

WE CONCUR:


          BENKE, Acting P. J.


               McINTYRE, J.




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