Filed 10/21/15 P. v. Scherbovitsch CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR


THE PEOPLE,                                                          B260841


         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No.BA114220)
         v.


WALTER SCHERBOVITSCH,


         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, William
C. Ryan, Judge. Affirmed.
         Kathleen Caverly, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                      INTRODUCTION
       Appellant Walter Scherbovitsch appeals from an order denying his petition to
recall his sentence under the Three Strikes Reform Act of 2012. (Pen. Code,
§ 1170.126.1) His appointed counsel filed a brief requesting that we independently
review the record for error. (People v. Wende (1979) 25 Cal.3d 436, 441.) We directed
counsel to send the record and a copy of the brief to appellant, and notified him of his
right to respond within 30 days. Appellant did not respond.
                                      BACKGROUND
       In 1991, Appellant was convicted of two counts of residential burglary in the first
degree under section 459. In 1996, Appellant was again convicted of one count of
residential burglary in the first degree under section 459. The record does not include
facts about any of the crimes. Each of these counts is classified as a “serious felony”
under section 1192.7, subdivision (c)(18), and therefore each burglary conviction counts
as a “strike” under the “Three Strikes” law. Appellant was sentenced to 35 years to life.
       In November 2014, Appellant petitioned to have his sentence recalled under
section 1170.126. That statute allows prisoners serving an indeterminate term under the
Three Strikes law for a felony that is not serious or violent to petition the court for
resentencing. (§ 1170.126, subd. (b).) The trial court denied the petition, noting,
“Defendant’s current conviction is for first degree burglary (Penal Code section 459),
which is a serious felony pursuant to Penal Code section 1192.7(c)(18), making
Defendant ineligible for resentencing pursuant to Penal Code section 1170.126(e)(2).”
                                        DISCUSSION
       We see no error. Section 1170.126 states, “(e) An inmate is eligible for
resentencing if: (1) The inmate is serving an indeterminate term of life imprisonment
imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of
Section 1170.12 for a conviction of a felony or felonies that are not defined as serious


       1
           All further statutory references are to the Penal Code unless otherwise indicated.
                                               2
and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.” (§1170.126, subd. (e).) Appellant is serving an indeterminate sentence for a
felony that is defined as serious by section 1192.7, subdivision (c)(18) [“As used in this
section, ‘serious felony’ means any of the following . . . any burglary of the first
degree.”] By the very terms of the statute, therefore, Appellant is not eligible for
resentencing under section 1170.126.
                                      DISPOSITION
       We have independently reviewed the record and conclude that no error was
committed. We therefore affirm.
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                        COLLINS, J.


We concur:


EPSTEIN, P. J.


WILLHITE, J.




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