Filed 12/26/17 P. v. Salinas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FFOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

MARK ANTHONY SALINAS,

Defendant and Appellant.


E068519

(Super.Ct.No. RIF108998)

OPINION


APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Mark Anthony Salinas appeals from an order denying his petition for recall of his indeterminate life term under Penal Code section 1170.126. We will affirm the order.
PROCEDURAL BACKGROUND
On October 6, 2003, a jury found defendant guilty of assault with a deadly weapon. (§ 245, subd. (a)(1).) Defendant admitted two prior convictions, both as strike convictions (§§ 667, former subds. (c) & (e)(2)) and as five-year prior serious felony enhancements (§ 667, subd. (a)). A trial court sentenced him to 35 years to life.
On November 6, 2012, the electorate passed Proposition 36, also known as the Three Strikes Reform Act. Among other things, this ballot measure enacted section 1170.126, which permits persons currently serving an indeterminate life term under the three strikes law to file a petition in the sentencing court, seeking to be resentenced to a determinate term as a second striker. (§ 1170.126, subd. (b).) If the trial court determines, in its discretion, that the defendant meets the criteria of section 1170.126, subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)
On September 24, 2013, defendant filed a petition for resentencing under section 1170.126. The trial court denied the petition on October 4, 2013, finding defendant ineligible for resentencing.
On October 18, 2013, defendant filed the same petition for resentencing. On October 21, 2013, the court denied the petition, stating that defendant was ineligible for resentencing and noting that the petition was previously denied on October 4, 2013.
On April 22, 2014, defendant filed an amended petition for resentencing, noting that he was found guilty of violating section 245, subdivision (a)(1), but the jury found that he did not personally inflict great bodily injury upon a nonaccomplice, within the meaning of sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8). On May 5, 2014, the court noted that a petition for recall of sentence was filed on September 24, 2013, and denied on October 4, 2013. The court further noted that defendant was convicted of assaulting a person with a machete, which was a strike offense. The court then denied the amended petition.
On April 8, 2015, defendant filed another amended petition for resentencing, alleging that he was found guilty of violating section 245, subdivision (a)(1), and that “there was [a] finding by the Jury of Penal Code 1192.7.” He then stated that the jury found he did not personally inflict great bodily injury upon a nonaccomplice within the meaning of sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8). A minute order dated September 24, 2015, reflects that, on the court’s own motion, the matter was “off calendar,” and the petition was previously ruled upon on May 5, 2014. The court denied the motion.
On May 22, 2017, defendant filed a petition for resentencing, in propria persona, pursuant to section 1170.126. He alleged there were no factors that disqualified him from Proposition 36 relief. He further alleged that a violation of section 245, subdivision (a)(1), was not a strike offense. The court denied the petition, noting that it was previously denied in 2015.
Defendant filed a timely notice of appeal, in propria persona.
DISCUSSION
We appointed counsel to represent defendant on appeal. After examination of the record, 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, setting forth a statement of the case, a summary of the facts, and two potential arguable issues: (1) whether the trial court abused its discretion in denying defendant’s petition on the basis that his current offense was serious felony; and (2) whether defendant had the right to be present at the hearing to determine his eligibility for resentencing.
Section 1170.126, applies exclusively to those “persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.” (§ 1170.126, subd. (a).) Section 1170.126 sets forth a procedure through which certain prisoners can petition the court for resentencing. Such a person may file a petition to recall his or her sentence and be sentenced as a second strike offender. (§ 1170.126, subd. (b).) An inmate is eligible for such resentencing if none of his or her commitment offenses constitute serious or violent felonies and none of the enumerated factors disqualifying a defendant for resentencing under Proposition 36 apply. (§ 1170.126, subd. (e).)
Section 1170.126, subdivision (e)(1), provides that an inmate is eligible for resentencing if “[t]he 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 and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” Defendant has a current conviction for assault with a deadly weapon, an offense listed in section 1192.7, subdivision (c)(31). He was therefore ineligible for resentencing under section 1170.126.
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.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
Acting P. J.


We concur:


MILLER
J.


SLOUGH
J.