Filed 2/17/16 P. v. Hobley CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

TIMOT H Y HOBL EY , Defendant and Appellant. B266812
(Los Angeles County Super. Ct. No. MA022729 )

THE COURT: * Defendant and appellant T imothy Hobley (defendant) ap peals from an order denying his petition to recall his sentence and for resentencin g under Proposition 36 . H is appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ), raising no issues. After we notified defendant of his counsel’s brief and ga ve him leave to file h is own brief or letter s tating any gro unds or argument he might wish to
have considered , defendant submitted a su pplemental brief, raising defects in his underlying conviction

. After reviewing the entire record and defendant’s supplemental
brief , we find no arguable issues and affirm the orde r

.

* BOREN, P.J., ASHMANN

- GERST, J., CHAVEZ, J.2

In 2001 , defendant was charged with five felonies, as follows: counts 1, 2, and 3, assault with a deadly weapon, in violation of Penal Cod e section 245, subdivision (a) 1 ; counts 4 and 5, making a terrorist threat, in violation of section 422 , with the special allegations that in committing the two terrorist threat counts, defendant personally used a knife, within the meaning of section 12022, subdivision (b)(1)

. T he information alleged pursuant to the “Three Strikes” law, sections 1170.12, subdivision (a)

- (d), and 667, subdivisions (b)

- (i) , and section 667 subdivision (a), that defendant had suffered a conviction of attempted robbery in 1986 and of a felony violation of section 245, subdivision (a)(1), in 1995. A jury convicted defendant of counts 1, 2, 4, and 5 as charged, and as to count 3, convicted defendant of misdemeanor assaul t in violation of
section 240. The jury found true that defendant personally used a knife in making the
terrorist threat s . Following a court trial on defendant’s prior co nvictions the trial court
found them true. On June 3, 2002, the trial court imposed three concurrent third

- strike sentences totaling 36 years to life in prison

. As to count 4 , the base term, the court imposed a

sentence of 25 years to life, enhanced by o ne year for the use of a deadly weapon
, and 10

years due to two prior serious felony convictions alleged under section 667, subdivision (a). The court also imposed concurrent 25 years to life sentences as to each of counts 1
and 2, assault s with a deadly weapon, each enhanced by 10 years ; and a concurrent 25 years to life as to count 5, enhanced by one year

. We subsequently affirmed the judgment in a nonpublished opinion. ( People v. Hobley (July 1, 2003, B160419).)
In August 2015, defendant filed Proposi tion 36 petition s to recall his third

- strike

sentence s pursuant to section 1170.126

. 2 Defendant alleged that the convictions for which he was serving the sentences, assault with a deadly weapon and criminal threats
,

1 All further statutory references are to the Penal Co de, unless otherwise indicated.

2 Defendant’s petition for resentencing was no t filed within two years of the effective date of Proposition 36, and made no showing of good cause for the delay, as required by section 1170.126, subdivision (b). The trial court did not base its ruling on that provision.3

were not serious or violent felonies l isted in section 1192.7 , subdivision (c )

. T he trial

court denied the petition on the ground that defendant was serving a life sentence imposed due to the commission of a serious or violent felony, and d efendant filed a timely notice of appeal from the ord er. “An inmate is eligible for resentencing if : [¶]

. . . [t]he inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or violen t” under section 667.5, subdivision (c), or section 1192.7, subdivision (c). (§ 1170.126, subd. (e)(1); People v. Johnson (2015) 61 Cal.4th 674, 682.) Contrary to the allegation in defendant’s petition
, defendant’s third

- strike sentences were imposed for offenses that
were serious felonies : a ssault with a deadly weapon
, a nd felony criminal threat with the finding that defendant personal ly used a knife. (See § 1192.7 subd. (c)(31) & (23).) Defendant’s sentences were thus ineligible for resentencing.
In his supplement al brief filed in support of this appeal, defendant con tends that his sentence amounted to double jeopardy and violated the constitutional prohibition against cruel and unusual punishment, and that the evidence adduced at trial was
insuffici ent to prove that he was armed with a knife. A trial court may not go beyond the
record of conviction in determin i ng whether the nature of the defendant’s conviction qualifies for resentencing. ( People v. Bradford (2014) 227 Cal.App.4th 1322
, 1337

- 1341.) Thus, as defendant’s record of conviction demonstrates that the disqualifying
factors were pled and found true by a jury , the court was not permitted to consider evidence rejected by the jury

. Further, n othing in Proposition 36 provides for a new trial on the charges or a second appeal of defendant’s conviction. T he rule remains that
defendant is not entitled to challenge his criminal conviction in a second appeal after limited resentencing proceedings or other posttrial procedures . ( People v. Senior ( 1995) 33 Cal.App.4th 531, 5 35

- 5 37 .) We have examined the entire record and are satisfied that defendant’s appellate counsel has fully complied with h er responsibilities and that no arguable issue exists. We conclude that defendant has, by virtue of counse l’s compliance with the Wende procedure4

and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. ( Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123

- 124.)
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.