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Filed 12/31/13 P. v. James 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

CHRISTOPHER D AVID JAMES,
Defendant and Appellant. E059383
(Super.Ct.No. FSB044381)

OPINION

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pu rsuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.2

Defendant and appellant Christopher David James appeals from an order denyin g his petition for recall of an indeterminate life term under Penal Code section 1170.126,
subdivision (f). 1 We will affirm the order.

I

BACKGROUND
On April 8, 2009, a jury found defendant guilty of first degree burglary (§ 459).
The jury also fou nd true the allegations that the burglary was of an inhabited dwelling
house (§ 459) and that when defendant committed the offense
, another person, other than
an accomplice, was present (§ 667.5, subd. (c)). In a bifurcated bench trial, t he trial court

fo und true that defendant had suffered two prior strike convictions (§§ 667, subds. ( b)

- ( i ),
1170.12, subd s

. (a)

- (d) ) for rape (§ 261, subd. (a)(2)) and attempted oral copulation by
force (§§ 664/288a, subd. (c)(2)) , two prior serious felony convictions (§ 6 67, subd.
(a)(1)) for rape and attempted oral copulation by force; and that defendant had served two
prior pri son terms (§ 667.5, subd. (a )). On June 23, 200 9 , the trial court sentenced

defendant to a total indeterminate term of 30 years to life in state prison with credit for

time served.

1 All future statutory references are to the Penal Code unless otherwise stated.3

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 indeter minate life term under the

“T hree S trikes ” 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).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is
eligible for resentencing if he or she is s erving 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.” (§ 1170.126, subd. (e)(1).)

On July 15, 2013
, defendant filed in pro per a petition for resentencing under

section 1170.126. The trial court denied the petition on August 1, 2013
, finding
defendant ineligible for resentencing under section 1170.126 due to his current

commitment offense for residential burglary and his prior convictions for forcible rape
and attempted forcible oral copulation. Defendant filed a timely notice of app eal. 2

2 We note that the California Supreme Court has granted review in cases that have found that the trial court’s order on a postjudgment petition pursuant to section 1170.126 is a nonappealable order. (See, e.g., Teal v. Sup erior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2), [footnote continued on next page]4 III

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 potential arguable issues, and requesting this court conduct an
independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so.
Prop osition 36 also added section 1170.126, which 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

[footnote continued from previous page] Cal. Rules of Court.) Even if we were to co nclude it was a nonappealable order, we could consider, in the interest of judicial economy and because of uncertainty in the law, that defendant’s appeal is a petition for writ of habeas corpus or petition for writ of mandate. (See People v. Segura (2008 ) 44 Cal.4th 921, 928 fn. 4 [treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v. Superior Court (2006) 139 Cal.App.4th 845, 853 [Fourth Dist., Div. Two] [treating appeal as petition for writ of mandate due to uncertaint y in the law].) In People v. Leggett (2013) 219 Cal.App.4th 846, 854, the appellate court expressed that when a trial court must determine whether the prior convictions qualify under the resentencing provision, such issue is appealable. We will review de fendant’s appeal.5

which certain prisoners can petition the court for resentencing. Such a person may file a
petitio n 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) (3), provides that a n inmate is eligible for
resentencing if “[t] he inmate has no prior convictions for any of the offenses appearing in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.”

Defendant here has a prior conviction for forcible rape an d attempted forcible oral
copulation, offenses listed in sections 667, subdivision (e)(C)(iv)(I), and 1170.12,
subdivision (c)(C)(iv)(I). Additionally, defendant’s current conviction for residential first
degree burglary is a serious felo ny under Californ ia sentencing law

. (See §§ 667,

subd. (d)(1), 1192.7, subd. (c) (18) .) Defendant is therefore ineligible for resentencing

under section 1170.126.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record f or potential error and find no arguable issues.6 II

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J. We concur:

HOLLENHORST J.

CODRINGTON J.