Filed 7/21/17 P. v. Campos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

MANUEL GILBERT CAMPOS,

Defendant and Appellant.


E068061

(Super.Ct.No. SWF1102822)

OPINION


APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed.
Manuel Gilbert Campos, in pro. per.; and Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Manuel Gilbert Campos appeals from the denial of his petition to recall his sentence under Penal Code section 1170.126, also known as Proposition 36, or the Three Strikes Reform Act. We affirm.
FACTS AND PROCEDURE
On August 26, 2011, defendant and a second inmate attacked a third inmate in a common room of the Southwest Detention Center in Riverside County. A sheriff deputy who observed the attack told the jury that it appeared the second inmate was punching the third inmate with his fists, but it looked like defendant was holding something in his hand and making jabbing motions at the third inmate. After the attack was over, defendant reached into his cell and appeared to hand something to his cellmate. Moments later, defendant took off his orange undershirt and stuffed it under the then-closed door of his cell. It appeared his cellmate pulled the shirt into the cell. The deputy also described these events as a video of the attack and aftermath was shown to the jury.
The jury convicted defendant of assault with a deadly weapon. (§ 245, subd. (a)(1).) Two serious felony prior convictions (§ 667, subd. (a)) were also found true. The court sentenced defendant to a third strike sentence of 25 years to life, plus 10 years consecutive for the two felony convictions, all of which was to be served consecutive to a term in another case. This court affirmed the judgment in People v. Campos, supra, E061387.
On November 6, 2012, the electorate passed Proposition 36, also known as the Three Strikes Reform Act of 2012. 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. (f).) 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 March 1, 2017, defendant filed his petition under section 1170.126. On the same date, the court found defendant “ineligible for resentencing” and denied the petition.
This appeal followed.
DISCUSSION
Upon defendant’s request, this court appointed counsel to represent him. 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, the facts, and identifying potentially arguable issues. We offered defendant an opportunity to file a personal supplemental brief, and he has done so.
Defendant argues he was not personally armed during the assault on the inmate and that any instrument was not deadly per se, thus making him eligible for relief under Proposition 36. Specifically, defendant submits a letter from counsel, dated June 21, 2016, stating she recalled that several jurors with whom she spoke after the verdict “did not believe you were the individual who actually inflicted the injury.” We reject defendant’s argument because: (1) counsel’s letter is not part of the record on appeal and would be better used in a petition for habeas corpus; and (2) the facts of the case, as described in this court’s opinion in People v. Campos, supra, E061387, show that the jury heard testimony and saw a video of the attack that indicate defendant was personally armed with the deadly weapon.
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 court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P.J.
We concur:


McKINSTER
J.


SLOUGH
J.