Filed 1/17/14 P. v. Hughes 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059474

v.                                                                       (Super.Ct.No. FWV17172)

MICHAEL WAYNE HUGHES,                                                    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.

         John L. Dodd, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Michael Wayne Hughes appeals after the trial court

denied his petition for resentencing under Penal Code section 1170.126, known as the



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Three Strikes Reform Act of 2012. (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7,

2012).)1 Defendant filed a notice of appeal on August 15, 2013. We affirm.

                               PROCEDURAL BACKGROUND

         Defendant was charged by information with possession for sale of a controlled

substance. (Health & Saf. Code, § 11378, count 1.) It was further alleged that, in the

commission of count 1, defendant was personally armed with a firearm. (Pen. Code,

former § 12022, subd. (c).) In addition, it was alleged as to count 1 that defendant was

previously convicted of a violation of Health and Safety Code section 11378, within the

meaning of Health and Safety Code section 11370.2, subdivision (a). The information

also charged defendant with possession of a firearm by a felon (Pen. Code, former

§ 12021, subd. (a)(1), count 2), and possession of methamphetamine while being armed

with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a), count 3). The

information further alleged that defendant suffered two prior strike convictions (Pen.

Code, §§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)), and that he had served four prior

prison terms (Pen. Code, § 667.5, subd. (b)).

         A jury found defendant guilty of all counts. It also found true the allegations that,

as to count 1, defendant was personally armed (Pen. Code, former § 12022, subd. (c)),

and that he was previously convicted of a violation of Health and Safety Code

section 11378, within the meaning of Health and Safety Code section 11370.2,

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.



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subdivision (c).2 The jury further found that he had served four prior prison terms, and

that he had two prior strike convictions. The court sentenced defendant to a total term of

57 years to life in state prison. The sentence consisted of the indeterminate term of 25

years to life on count 1, plus three years pursuant to Health and Safety Code section

11370.2, subdivision (c), and one year on each of the four prison priors. The court

sentenced him to four years on the armed allegation (Pen. Code, former § 12022,

subd. (c)), but stayed that term under Penal Code section 654. On count 2, the court

imposed a consecutive term of 25 years to life. On count 3, the court also imposed 25

years to life, but stayed that sentence pursuant to Penal Code section 654. The court

subsequently struck the armed allegation under Penal Code former section 12022,

subdivision (c).

       On March 15, 2013, defendant filed an in pro. per. petition for resentencing under

Penal Code section 1170.126. The court denied the petition on the ground that

defendant’s current conviction for possession of methamphetamine while being armed

with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)) made him

ineligible for resentencing under Penal Code section 1170.126, subdivision (e)(2).




       2 We note that the information alleged this enhancement under Health and Safety
Code section 11370.2, subdivision (a). However, the allegation was apparently amended.
The jury found true the enhancement allegation under Health and Safety section 11370.2,
subdivision (c).


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                                        ANALYSIS

       After the notice of appeal was filed, this court appointed counsel to represent

defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25

Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d

493], setting forth a statement of the case, a brief statement of the facts, and identifying

one potential arguable issue: whether defendant is precluded from obtaining relief under

section 1170.126.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has not done. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an

independent review of the record and find no arguable issues.

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 HOLLENHORST
                                                                                               J.


We concur:


RAMIREZ
                        P. J.


CODRINGTON
                           J.




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