Filed 9/25/15 P. v. Canela CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ASENCION CANELA

,

Defendant and Appellant. B 262313

(Los Angeles County Super. Ct. No. NA029281 )

APPEAL from an order of the Superior Court of Los Angeles County,

William C. Ryan, Judge. Affirmed.

Richard B. Lennon , under appointment by t he Court of Appeal, for Defendant

and Appellant.

No appearance for Plaintiff and Respondent.

_____________________2

In 1996, defendant and appellant Ascencion Canela was convicted of first degree

burglary (Pen. Code, § 459) 1 and misdemeanor battery (§ 242) . Because he was also

found to have sustained convictions for three prior serious or violent felonies within the

meaning of the “ Three Strikes ” law (§§ 667, subds. (b)

- (i), 1170.12, subds. (a)

- (d)),

Canela was sentenced to a prison term of 40 years to lif e on the burglary charge. The

judgment was affirmed on appeal ( People v. Canela (Dec. 1, 1997, B108663) [nonpub.

opn.]).

On November 4 , 2014, following passage of the Three Strikes Reform Act of 2012

(Prop. 36), 2 Canela filed a petition seeking to recal l his Three Strikes sentence. The trial

court denied the petition with prejudice on the ground that Canela’s current conviction

for first degree burglary is a serious felony which makes him ineligible for resentencing.

Canela timely appealed from the ord er of denial. 3

We appointed counsel to represent Canela on appeal. After reviewing the record,

counsel filed an opening brief requesting this court to independently review the record

pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441. We directed

counsel to send the record on appeal and a copy of the opening brief to Canela, and

notified defendant he had 30 days within which to personally submit any contentions or

issues that he wished us to consider. On June 26, 2015, Canela filed a s upplemental

brief.

We have examined the entire record and determined that, as the trial court ruled,

because Canela’s current conviction is for first degree burglary (§ 459), which is a

serious felony (§ 1192.7, subd. (c)(18)), he is not eligible for a re duction of his sentence

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

2 The passage of Proposition 36 resulted in the enactment of section 1170.126.

3 The trial court’s den ial of a petition to recall a sentence pursuant to

section 1170.126 is an appealable order under section 1237, subdivision (b). ( Teal v. Superior Court (2014) 60 Cal.4th 595, 598.)3

under section 1170.126. 4 Contrary to the suggestion in Canela’s supplemental brief, it is

his most recent conviction that prevents any reduction in his sentence. We are satisfied

that defense counsel has fully complied with his re sponsibilities and that no arguable

appellate issue exists. ( Smith v. Robbins (2000) 528 U.S. 259, 278 [120 S.Ct. 746];

People v. Kelly (2006) 40 Cal.4th 106, 110.)

4 “Under the three strikes law [citation] as it existed prior to Proposit ion 36 [hereafter, “the Act”], a defendant convicted of two prior serious or violent felonies would be subject to a sentence of 25 years to life upon conviction of a third felony. Under the Act, however, a defendant convicted of two prior serious or viole nt felonies is subject to the 25

- year

- to

- life sentence only if the third felony is itself a serious or violent felony. If the third felony is not a serious or violent felony, the defendant will receive a sentence as though the defendant had only one prior serious or violent felony conviction, and is therefore a second strike, rather than a third strike, offender. The Act also provides a means whereby prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a se rious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction. According to the specific language of the Act, however , a current inmate is not entitled to resentencing if it would pose an unreasonable risk of danger to public safety.” ( People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 1279, 1285

- 1286, fn. omitted.)4 DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL RE PORTS

EDMON, P. J.

We concur:

ALDRICH, J.

JONES , J. 

 Judge of the Los Angeles Superior Court, ass igned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.