Filed 2/20/14 P. .v Estrada CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent,

v. CARLOS ESTRADA, Defendant and Appellant. B251195 (Los Angeles County Super. Ct. No. LA022691)

APPEAL from an order of the Superior Court of Lo s Angeles County, William C. Ryan, Judge. Affirmed.

California Appellate Project, Jonath an B. Steiner and Larry Pizarro, 

### under appointment by the Court of Appeal , for Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 Defendant and appellant, Ca rlos Estrada, appeals from the trial court’s order denying his petition to recall his Three Stri kes sentence of 25-years-to-life and to resentence him as a second striker pursu ant to Penal Code section 1170.126. 1 We affirm. 2
FACTUAL AND PROCED URAL BACKGROUND On May 28, 1996, a jury found Estrada guilty of the nonviolent felonies of possession of cocaine base for sale in viol ation of Health and Safety Code section 11351.5, possession or purchase for sale of de signated controlled subs tances in violation of Health and Safety Code section 11351 and the transportation, sale or giving away of a designated controlled substance in violation of Health and Safety Code section 11352, subdivision (a). Then, in a bi furcated proceeding in the same matter, the trial court found that on July 23, 1983 Estrada had entered pleas of guilty to the attempted murder of a peace officer (§§ 664, 187), assa ult with a deadly weapon or by means of force likely to produce great bodily injury on a peace offi cer (§ 245, subd. (c)) and robbery, during which he personally used a firearm (§§ 211, 12022.5). Due to his prior convictions for serious and violent felonies, on June 28, 1996 the trial cour t sentenced Estrada to a term

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The question whether the trial court’s denial of a defendant ’s section 1170.126 petition is an appealable order is currently pending before the Su preme Court. (See People v. Hurtado (2013) 216 Cal.App.4t h 941, review granted July 31, 2013, S212017 [order is appealable]; Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708 [o rder must be challenged by petition for writ].)3 of 25-years-to-life pursuant to the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Acting in propria persona, on July 31, 2013, 3 Estrada filed in the trial court a petition to recall his 25-years-to-life sentence pursuant to section 1 170.126, the statute implemented as a result of the passage of Proposition 36. In his petition Estrada, after requesting the trial court to take into acco unt the remoteness in time of his violent felonies, his efforts at rehab ilitation and the length of his pres ent incarceration, asked the court to resentence him as a second-striker. On August 6, 20 13, the trial court considered Estrada’s petition. In its Memorandum of Decision, the court stated: “The Court has read and considered the petition for recall of sentence pursuant to . . . section 1170.126 f iled by [the] Defendant on July 31, 2013. [¶] One of Defendant’s prior convicti ons is for attempted murder (. . . section 664/187), in case A802972 on December 30, 1982 which is a disqualifying offense pursuant to . . . section 667(e)(2 )(C)(iv)(IV), making Defe ndant ineligible for resentencing pursuant to . . . section 1170.126. [¶] For the foregoing reason, the petition for recall of sentence is DENIED WITH PREJUDICE.” Estrada filed a timely notice of appeal from the trial court’s order on August 26,
2013.

3 Although the trial court’s minute orde r and Memorandum of Decision indicate Estrada’s petition was filed on July 31, 2013, the stamp on the actual petition indicates it was filed on July 29, 2013.4 CONTENTIONS After examination of the reco rd, appointed appellate coun sel filed an opening brief which raised no issues and requested this c ourt to conduct an independent review of the record. By notice filed Novemb er 22, 2013, the clerk of th is court advised Estrada to submit within 30 days any cont entions, grounds of appeal or arguments he wished this court to consider. On Decembe r 16, 2013, Estrada filed a re sponse to the clerk’s letter. We initially note that section 1170.126 provides in relevant part: “(a) The resentencing provisions under this section . . . are intended to apply exclusively to persons presently serving an indetermin ate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 6 67 or paragraph (2) of subdivision (c) of Section 1170.12, [the Three Strikes law,] whose sentence under this act would not [otherwise] have been an indeterminate life sentence. [¶] (b) Any person serving an indeterminate term of life imprisonment imposed pursua nt to paragraph (2) of subdivision (e) of Section 6 67 or paragraph (2) of subdiv ision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies th at are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a reca ll of sentence, within two years after the effective date of the act that added this secti on or at a later date upon a showing of good cause . . . to request resenten cing in accordance with the prov isions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amended by the act that added this section.”5 Section 1170.126 does, however, provide that a defendant meet certain criteria before he or she may be resentenced under its provisions. For example, subdivision (e) of the statute indicates that “[ a]n inmate is eligible for rese ntencing [under this act] if: [¶] . . . [¶] (3) The inmate ha s no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragrap h (2) of subdivision (e ) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” Here, Estrada’s prior conviction for attempted murder is referred to by section 1170.12, subdivision (c)(2)(C)(iv)(IV) 4 as well as section 667, subdivision (e)(2)(C)(iv)(IV). 5 Under these circumstances, Estrada is ine ligible for resentenci ng pursuant to the provisions of section 1170.126 and the tr ial court properly denied his petition. Estrada asserts, by filing a brief which raised no issues, his counsel failed to consider the provisions of subd ivision (k) of section 1170.126 . That subdivision reads: “Nothing in this section is intended to dimi nish or abrogate any rights or remedies otherwise available to the defe ndant.” Although it is not en tirely clear, it appears Estrada believes, pursuant to subdivisio n (k), his appellate counsel s hould have moved to have his prior conviction for attempted murder strick en because the plea was involuntary, was unsupported by the evidence and his counsel at the time he entered the plea was ineffective.

4 Section 1170.12, subdivision (c)(2)(C)(iv)(IV) refers to “[a]ny homicide offense, including any attempted homicide offense, defi ned in Sections 187 to 191.5, inclusive.”

5 Section 667, subdivision (e)(2)(C)(iv)(IV) refers to “[a]ny homicide offense, including any attempted homicide offense, defi ned in Sections 187 to 191.5, inclusive.”6 Apart from whether his counsel shoul d have made such a motion under subdivision (k) of section 1170 .126, Estrada has prov ided no evidence in support of his assertion his plea to attempted murder was unsupported by the evidence, was involuntary or that his counsel in the matt er was ineffective. In order to be considered, a defendant’s statement or assertion must be corroborate d by independent, objective evidence. ( In re Alvernaz (1992) 2 Cal.4th 924, 938 , 945.) No such evidence has been provided here. REVIEW ON APPEAL We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. ( Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.) DISPOSITION The trial court’s order is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.
We concur: KLEIN, P. J.

ALDRICH, J.