Filed 7/17/14 P. v. Washington CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,                                                          B255076

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA027419)
         v.

JESSE WASHINGTON,

         Defendant and Appellant.




         APPEAL from an 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.
       In 1996, a jury found defendant and appellant, Jesse Washington, guilty of first
degree burglary and determined he previously had suffered convictions for two serious
felonies within the meaning of Penal Code section 667, subdivision (a)1 and the Three
Strikes law. The trial court sentenced Washington to 25 years to life in prison.2 In
February 2014, Washington, acting in propria persona, filed a petition in the trial court
pursuant to section 1170.126 requesting the trial court to recall and reduce his sentence.
The trial court denied the petition. We affirm the trial court’s order.3
                                     BACKGROUND
       Following a trial held in 1996, a jury found Washington guilty of first degree
burglary in violation of section 459 and determined he previously had been convicted of
two serious felonies within the meaning of section 667, subdivision (a) and the Three
Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
       On February 3, 2014, Washington, acting in propria persona, filed a petition for
modification of his sentence in the 1996 case pursuant to section 1170.126, a statute
enacted as a result of the 2012 passage of Proposition 36. Washington asserted he had
committed no violent acts in his criminal history, which ranged from the 1980’s to 1996,
and his current release date of 2030 amounted to an injustice and was “unjustifiable.”
Washington indicated the trial court had abused its discretion by denying his petition for
modification of his Three Strikes sentence imposed for his conviction of first degree
residential burglary because, in committing that crime, he merely broke a window. He
had not entered the house or taken any property from inside. Under these circumstances,

1
       All further statutory references are to the Penal Code unless otherwise indicated.
2
        In an opinion filed in a prior appeal in this matter (People v. Washington (Mar. 16,
1998, B104625) [nonpub. opn.]), it is indicated Washington was sentenced to 35 years to
life in prison.
3
       The question whether the trial court’s denial of a defendant’s section 1170.126
petition is an appealable order is currently pending before the California Supreme Court.
(See People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013,
S212017 [order is appealable]; Teal v. Superior Court (2013) 217 Cal.App.4th 308,
review granted July 31, 2013, S211708 [order must be challenged by petition for writ].)

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the burglary should be considered a “non-serious[,] non-violent” offense and he should
be eligible for resentencing under the provisions of Proposition 36 as a “second striker.”
       In a Memorandum of Decision filed February 7, 2014, the trial court denied
Washington’s petition “with prejudice.” The trial court stated: “[Washington’s] current
conviction is for first degree burglary (. . . section 459), which is a serious felony
pursuant to . . . section 1192.7[, subdivision] (c)(18), making [Washington] ineligible for
resentencing pursuant to . . . section 1170.126[, subdivision] (e)(2).”
       Again acting in propria persona, on March 18, 2014, Washington filed a notice of
appeal from the trial court’s order.
                                       CONTENTIONS
       This court appointed counsel to represent Washington on appeal. After
examination of the record, counsel filed an opening brief which raised no issues and
requested this court to conduct an independent review of the record. By notice filed
May 12, 2014, the clerk of this court advised Washington to submit within 30 days any
contentions, grounds of appeal or arguments he wished this court to consider.
       On June 17, 2014, Washington filed a supplemental brief in which he asserted the
facts of his case were much less incriminating than those in a matter involving a
defendant by the name of Green.4 In his original petition filed in the trial court,
Washington had indicated Green actually entered a church and ate food from the
refrigerator there. According to Washington, the federal court “overturned Green’s
conviction based on [a] theory of [the] non-seriousness of [Green’s] intent when he
entered the structure.” Here, Washington urges he never actually entered the victim’s
home and there was no evidence he took any property from the residence. In addition,
with regard to his prior offenses Washington indicated, although he had not committed an
alleged 1992 first degree burglary, he had pled guilty to the offense because he received
as a sentence “time served.” Washington argues, based on these facts, this court should
remand the matter to the trial court which should reverse the finding he was guilty of first

4
       Washington also refers to this defendant as “Taylor.”

                                               3
degree burglary and had committed a third strike and should instead sentence him as a
“second striker.”
       Washington further contends records he has attached to his brief indicate that in
1990 he was convicted of second degree, not first degree, burglary. Although
Washington may well have been convicted of second degree burglary in 1990, that does
not mean he was not also found guilty of first degree burglary or another serious felony
on another occasion. In particular, we note the record establishes he suffered a
conviction for robbery in 1986.
       In the 1996 case, a jury found, in addition to the charge before it, that Washington
previously had been convicted of two first degree burglaries. Washington’s statement to
the contrary is not corroborated by any independent, objective evidence. (See In re
Alvernaz (1992) 2 Cal.4th 924, 938, 945.) Accordingly, the trial court properly sentenced
Washington as a Third Strike offender and denied his petition for resentencing made
pursuant to section 1170.126.
                                  REVIEW ON APPEAL
       We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)




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                                    DISPOSITION
     The trial court’s order is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                ALDRICH, J.


We concur:


             KLEIN, P.J.




             KITCHING, J.




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