Filed 1/14/15 P. v. Ayala 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E061057

v.                                                                       (Super.Ct.No. FSB06424)

MICHAEL ANTHONY AYALA,                                                   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.

         Michelle Rogers, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Michael Anthony Ayala filed a petition for resentencing

pursuant to Penal Code section 1170.126. The court denied the petition. After counsel

filed the notice of appeal, this court appointed counsel to represent defendant. Counsel
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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 and identifying three potentially arguable issues: 1) whether the

court abused its discretion in denying defendant’s petition; 2) whether a sufficient factual

basis existed for the court’s denial of defendant’s petition; and 3) whether a conviction

for possession of a controlled substance while armed with a firearm can be classified as a

violent felony. We affirm the judgment.

                               PROCEDURAL HISTORY

       On July 23, 1995, the People charged defendant by information with sale of a

controlled substance, methamphetamine (count 1; Health & Saf. Code, § 11379, subd.

(a))1; possession of a controlled substance, methamphetamine (count 2; § 11377, subd.

(a)); carrying a dirk or dagger (count 3; Pen. Code, § 12020, subd. (a)); possession of a

firearm by a felon, a .38 revolver (count 4; Pen. Code, § 12021, subd. (a)); possession of

a controlled substance, methamphetamine, with a firearm, a colt revolver (count 5;

§ 11370.1, subd. (a)); cultivating marijuana (count 6; § 11358); possession for sale of a

controlled substance, heroin (count 7; § 11351); possession of a controlled substance,

heroin (count 8; § 11350, subd. (a)); being under the influence of a controlled substance,

heroin (count 9; § 11350, subd. (a)); possession of a controlled substance, heroin (count

10; § 11350, subd. (a)); and possession of a controlled substance, methamphetamine

(count 11; § 11377, subd. (a)). The People additionally alleged that with respect to

       1All further statutory references are to the Health and Safety Code unless
otherwise indicated.

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counts 1 and 7, defendant was personally armed with a firearm (Pen. Code, § 12022,

subd. (c)). It was additionally alleged defendant had suffered two prior strike

convictions (Pen. Code, § 667, subds. (b)-(i)) and two prior prison terms (§ 667.5, subd.

(b)).

        Defendant’s plea agreement reflected he faced a total aggregate term of 260 years

to life if convicted of all the charged offenses and allegations. Defendant pled guilty to

count 5, possession of a controlled substance, methamphetamine, while armed with a colt

revolver. Defendant admitted all alleged prior convictions. In return, all remaining

counts, allegations, and enhancements were dismissed. As provided in the plea

agreement, the court sentenced defendant to an indeterminate term of 25 years to life.

        On January 14, 2014, defendant filed a Penal Code section 1170.126 petition

seeking resentencing. On March 24, 2014, the court denied the petition finding that

defendant’s conviction for possession of drugs while armed with a firearm made him

statutorily ineligible for resentencing pursuant to Penal Code section 1170.126.

                                      DISCUSSION

        We offered defendant an opportunity 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 independently reviewed the record for potential error and find no arguable issues.

(Pen. Code, §§ 1170.126, subd. (e)(2), & 667, subd. (e)(2)(C)(iii) [Defendant ineligible

for resentencing where, “[d]uring the commission of the current offense, the defendant . .

. was armed with a firearm . . . .”]; See In re Champion (2014) 58 Cal.4th 965, 1006-1007



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[defendant in petition for writ of habeas corpus “‘“bears a heavy burden initially to plead

sufficient grounds for relief, and then later to prove them.”’”].)

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 CODRINGTON
                                                                                          J.

We concur:


McKINSTER
                 Acting P. J.


MILLER
                           J.




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