Filed 7/31/14 P. v. Morales 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060545

v.                                                                       (Super.Ct.No. FSB036627)

RALPH RUBEN MORALES,                                                     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.

         Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       On April 7, 2005, a jury found defendant Ralph Ruben Morales guilty of four

counts of robbery. (Pen. Code, § 211, counts 1-2, 4-5.) Following a bifurcated trial on

April 12, 2005, the trial court found true allegations that defendant suffered four strike

priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that defendant

suffered four prior serious felony convictions (§ 667, subd. (a)(1)).

       After numerous continuances, defendant was sentenced on May 10, 2006. The

trial court denied defendant’s request to strike his strike convictions for purposes of

sentencing pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The

court sentenced defendant pursuant to the three strikes law to a total indeterminate term

of 180 years to life as follows: 25 years to life on each count, to run consecutively, plus

four consecutive 20-year terms based on the true finding enhancements of prior serious

felony convictions.

       On January 8, 2014, defendant, acting in propria persona, filed a petition in the

superior court requesting a recall of his sentence and resentencing pursuant to The Three

Strikes Reform Act of 2012 (Reform Act). At an ex parte hearing conducted on January

23, 2014, the trial court concluded defendant was not eligible for resentencing under the

Reform Act because he had been convicted of serious felonies. (See Pen. Code,

§§ 1170.126, subd. (e)(1), 1192.7, subd. (c)(19).) The court denied the petition.




                                              2
       Defendant timely appealed from the denial of his petition.1

                                      DISCUSSION2

       After defendant appealed, this court appointed counsel to represent him. Counsel

filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California

(1967) 386 U.S. 738, setting forth a statement of the case, a summary of facts and

potential arguable issues, and requesting that this court undertake an independent review

of the record on appeal.

       We invited defendant to file a personal supplemental brief, but he has not done so.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an

independent review of the record and find no arguable issues.




       1  We note that the question of whether a prisoner may appeal the denial of a
petition for recall and resentencing under the Reform Act is pending before the Supreme
Court. (Teal v. Superior Court, review granted July 31, 2013, S211708.) Even if we
were to conclude such an order is not appealable, we could, in the interests of judicial
economy, treat this appeal as a petition for writ of habeas corpus or a petition for writ of
mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating an appeal
from an nonappealable order as a petition for writ of habeas corpus]; Drum v. Superior
Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating an appeal
as a petition for writ of mandate due to the uncertainty in the law about appealability].)
Therefore, we decline to dismiss the appeal, and we will conduct an independent review
of the record on appeal as requested by appellate counsel.

       2 Because defendant appeals from an order denying his postjudgment petition for
resentencing, the underlying facts of his 2005 convictions are neither included in the
record nor applicable to this appeal.



                                             3
                                  DISPOSITION

     The postjudgment order is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                McKINSTER
                                                            Acting P. J.
We concur:



MILLER
                       J.



CODRINGTON
                       J.




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