Filed 3/26/15 P. v. Sanchez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent,

v. ARTHUR JOSEPH SANCHEZ, Defendant and Appellant. G050561 (Super. Ct. No. 96SF0819)

O P I N I O N

Appeal from a judgment of the Superi or Court of Orange County, Richard M. King, Judge. Affirmed. John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.2 We appointed counsel to represen t Arthur Joseph Sanchez on appeal.
Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his
client but advised the court he found no issues to argue on hi s client’s behalf. We gave Sanchez 30 days to file written argument on his own behalf. That time has passed, and
he did not file a brief. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 ( Wende ). The Wende court explained a Wende brief is one that sets forth a summary of the proceedings and the f acts but raises no specific issues. Under these circumstances, the court mu st conduct an independent re view of the entire record. When the appellant himself ra ises specific issues in a Wende proceeding, we must expressly address them in our opini on and explain why they fail. ( People v. Kelly (2006) 40 Cal.4th 106, 124.) Here, Sanc hez did not file a supplement al brief raising any issues. Sanchez appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1170.126 (all furt her statutory references are to the Penal Code). Pursuant to Anders v. California (1967) 386 U.S. 738, to a ssist this court with our independent review, counsel provided the court with information as to the following three issues that might arguably s upport an appeal: (1) “[w]hether the disqualifying factor for resentencing under section 1170.126 of being armed with a firearm be proven to a jury beyond a reasonable doubt in th e context of the underlying o ffense . . .”; (2) “[w]hether an inmate who is serving time for a convic tion for possession of a firearm, not being armed with a firearm, is disqualified from re sentencing under section 1170.126 . . .”; and (3) “[w]hether being armed with a firear m during the commission of the offense upon which the appellant is seeking resentencing requires some facilitative nexus to an underlying felony unrelated to pos session of the firearm . . . .”
We have reviewed the record in accordance with our obligations under
Wende and Anders, and considered the information pr ovided by counsel. We found no arguable issues on appeal. The judgment is affirmed.3 FACTS An information alleged Sanchez, “in violation of [s]ection 12021[, subdivision] (a)(1) of the Penal Code, (POSSESSION OF FIRE ARM BY A FELON), a FELONY, did willfully and un lawfully own and have in his/her possession and under his/her custody and control a firearm, to w it[:] .38 cal revolver gun, after having previously been convicted of a felony.” In July 1997, a jury found Sanchez guilty of that count. The weapon wa s loaded and located in Sanchez’s waistband during a vehicle stop.
The trial court found Sanchez had suffered co nvictions for two prio r serious or violent felonies, two separate section 211 robbery convictions. The trial court sentenced Sanchez
as a “Three-Strike” offender to an indetermin ate sentence of 25 years to life in prison. In March 2013, Sanchez filed a petition for recall of sentence and resentencing under section 1170.126. The prosecution filed a motion to dismiss the petition on the ground Sanchez wa s not eligible for resentencing because he was armed with a loaded weapon during the commission of his third strike offense. Sanchez filed opposition to the motion to dismiss, arguing section 1170.126, subdivision (e)(2), requires the prosecution to both plead and pr ove petitioner used a firearm or was armed with a deadly weapon; secti on 12021 does not exclude pe titioner from resentencing under section 1170.126, subdivision (b)(2); and Sanc hez falls within the intent of section 1170.126, subdivision (c). In August 2014, 1 the trial court heard Sanche z’s petition for resentencing. Citing People v. Osuna (2014) 225 Cal.App.4th 1020 , the court held Sanchez was ineligible for resentencing under section 1170.126 because “‘during the commission of the current offense, [Sanchez] used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another pe rson.’” The court stated the

1 No explanation for the delay be tween the filing of the petition and the hearing is provided in the record.4 statute disqualifies those who were arme d during the commission of an offense from recall and resentencing. Given the fact the officer arresting Sanchez located a loaded .38 caliber revolver in his waistband, th e court found Sanchez was ineligible for resentencing. The court rejected the argument there had to be a separate finding in the underlying case that Sanchez was armed. Rather, the court found that under the statute, it
was sufficient there were fact s in the record of convicti on demonstrating Sanchez was armed. On that basis, the court denied Sanchez’s petition for recall.
DISCUSSION A review of the record pursuant to Wende , supra , 25 Cal.3d 436, and
Anders , supra , 386 U.S. 738, including the possible issues raised by appellate counsel, has disclosed no reasonably ar guable appellate issue.
DISPOSITION The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.