Filed 9/ 9/15 P. v. Thrash 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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.

WILLIAM LEONARD THRASH ,
Defendant and A p pellant

. G0 51726
(Super. Ct. No. 95NF1668 )

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County,
Sheila F. Hans o n, Judge. Affirmed.

Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 In 1996, a jury convicted defendant William L eonard Thrash of assault by
means of force likely to produce great bodily injury (Pen. Code, § 245, former subd. (a)(1) , now su bd. (a)(4) ; all further statutory references are to this c ode), but found not true a charged enhancement that defendant inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court later determined defendant had five prior out

- of

- state strike convictions ( § § 667, subds. (b)

- (i)
, 1170.12 ), including, as relevant here, one Kentucky
conviction for “ malicious shooting with intent to kill

. ” ( §§ 667, subd. (d)(2)
, 1170.12 subd. (b)(2).) The court sentenced defendant to 25 years to life in state priso n

.

In 2013, d efendant filed a petition for resentencing under section 1170.126

. T he trial court denied the petition
, determining the prior Kentucky conviction constituted

a disqualifying homicide offense in California

. ( §§ 1170.126, subd. (e)(3)
, 667 su bd. (e)(2)(C)(iv)
, 1170.12, subd. (c)(2)(C)(iv) .) Defendant filed a timely notice of a ppeal.

W e appointed counsel to represent defendant

. In his brief, counsel summarized the proceedings and facts necessary to decide this appeal, and while not arguing ag ainst defendant, counsel stated he found no arguable issues to present. ( Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493]; People v. Wende (1979) 25 Cal.3d 436.) C ounsel notified defendant of his right to personally file a supplemental brief . Defendant was given 30 days to file written argument raising any points which he ch ose to call to the court ’ s attention

. We received no communication
from him.
Defendant ’ s counsel suggested this court consider two potential issues in conducting our independent review of the record: (1) whether collateral estoppel bars the trial court from making the determination that the prior Kentucky conviction constitutes a
homicide offense in California ; and (2) whether the court properly determin ed that defendant was ineligible for resentencing under section 1170.126

.

We have considered these issues and reviewed the record according to our obligations under People v. Wende
, supra , 25 Cal.3d 436 and Anders v. California
, supra , 386 U.S. 738, but found no arguable issues on appeal. On the first question, since the
nature of defendant ’ s Kentucky conviction was not necessarily resolved in the prior3

appeal, collateral estoppel does not apply. ( Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Seco nd, the trial court properly determine d defendant ’ s Kentucky conviction
amounted to an attempted homicide
, thereby rendering defendant ineligible for resentencing under section 1170.126

. ( § § 667, subd. (e)(2)(C)(iv)(IV)
, 1170.12, subd. (c)(2)(C)(iv)(IV) .)

The postjudgment order is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.