Filed 8/7/14 P. v. Tennant 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B254825

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA048602)
         v.

MICHAEL TENNANT,

         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.
          Following a 1998 jury trial, defendant and appellant, Michael Tennant, was found
guilty of first degree residential burglary (Pen. Code, § 459).1 The jury further
determined Tennant previously had been convicted of two serious or violent felonies
pursuant to section 667, subdivision (a) and three serious or violent felonies within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The
trial court sentenced Tennant to a total term of 35 years to life in prison. The judgment
was affirmed on appeal (People v. Tennant (Oct. 21, 1999, B127319) [nonpub. opn.]).
          On July 16, 2013, Tennant, acting in propria persona, filed a motion “for sentence
reduction pursuant to Proposition 36.”2 On January 28, 2014, following a hearing held
on the matter, the trial court denied the motion with prejudice. We affirm the trial court’s
order.3
                                        BACKGROUND
          In a motion filed in the trial court on July 16, 2013, Tennant, acting in propria
persona, asserted a jury had previously found him guilty of first degree burglary, then
determined he had suffered three crimes which amounted to “strikes” and two crimes
which amounted to serious felony convictions pursuant to section 667, subdivision (a)(1).
In view of his prior “strikes,” the trial court had sentenced Tennant to 25 years to life for
his current offense, a first degree burglary, then imposed an additional 10 years for the
prior serious felonies.
          In his motion, Tennant argued his prior “strikes,” convictions for first degree
burglaries, had not actually been proven to be strikes and thus should now be stricken.

1
          All further statutory references are to the Penal Code unless otherwise indicated.
2
          The passage of Proposition 36 resulted in the enactment of section 1170.126.
3
       The question whether the trial court’s denial of a defendant’s section 1170.126
petition or motion 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].)


                                                2
Tennant indicated there had been no evidence the burglaries had been committed when
“another person, other than an accomplice, was present in the residence . . . .” (§ 667.5,
subd. (c)(21).)4 However, in order to be a serious or violent felony pursuant to the Three
Strikes law, no other person need be present in a residence during a burglary. For
purposes of the Three Strikes law, the term “ ‘serious felony’ ” includes any crime listed
under subdivision (c) of section 1192.7. Subdivision (c)(18) indicates “any burglary of
the first degree” is a “ ‘serious felony.’ ”5
         At proceedings held on July 24, 2013, the trial court indicated, “[b]ecause of the
difficulty that inmates not represented by counsel appear[ed] to be having in calendaring
their petition[s] for a hearing, the court ha[d] decided to appoint counsel on its own
motion [to represent Tennant].” The trial court then appointed the Public Defender of
Los Angeles County to represent Tennant “in connection with his petition for recall and
resentencing.”
         The trial court heard the matter on January 28, 2014. The court indicated it had
“read and considered the petition for recall of sentence pursuant to . . . section 1170.126
filed by [Tennant] on July 16, 2013.” The court continued: “[Tennant’s] current
conviction [is] for first degree burglary (. . . section 459), which is a serious felony
pursuant to . . . section 1192.7[, subdivision] (c)(18), making [Tennant] ineligible for
resentencing pursuant to . . . section 1170.126[, subdivision] (e)(2). [¶] For the
foregoing reason, the petition for recall of sentence is denied with prejudice.”
         On March 5, 2014, Tennant filed a timely notice of appeal from the trial court’s
order.



4
       Section 667.5, subdivision (c)(21) indicates a first degree burglary becomes a
“violent felony” when “another person, other than an accomplice, was present in the
residence during the commission of the burglary.”
5
       Section 460 defines first degree burglary as “[e]very burglary of an inhabited
dwelling house . . . .” Section 459 indicates that, “[a]s used in this chapter, ‘inhabited’
means currently being used for dwelling purposes, whether occupied or not.”


                                                3
                                    CONTENTIONS
      After examination of the record, counsel appointed to represent Tennant on appeal
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 Tennant to submit within 30 days any contentions, grounds of appeal or
arguments he wished this court to consider. No response has been received to date.
                                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.)
                                         DISPOSITION
      The trial court’s order is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                       KLEIN, P. J.


      We concur:




                    KITCHING, J.




                    ALDRICH, J.




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