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Filed 11/13/15 P. v. Berg CA3

Reposted to provide correct filing date

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Siskiyou)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC ANTHONY BERG,

Defendant and Appellant.

C078424

(Super. Ct. No. SC SC CR F 

98-0087)

Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel for 

defendant Eric Anthony Berg has asked us to review the record for arguable issues in this 

appeal from the denial of his motion to modify his three strikes sentence pursuant to 

Penal Code section 1170.126.1 Defendant filed a supplemental brief asserting the trial 

court’s denial of his motion was incorrect for three reasons, which we explain post. 

 

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 Further undesignated statutory references are to the Penal Code.
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Although we do not necessarily agree that defendant is entitled to Wende review, as we 

explain, we nonetheless independently review the record for error and also consider 

defendant’s briefing, explaining why the contentions he raises in his supplemental brief 

are devoid of merit. We affirm.

BACKGROUND

Defendant was found guilty by jury of manufacturing methamphetamine while 

personally armed with a firearm (Health & Saf. Code, § 11379.6, subd. (a); § 12022, 

subd. (c)), possessing precursors with the intent to manufacture methamphetamine 

(Health & Saf. Code, § 11383, subd. (c) while a principal was armed with a firearm), and 

possession of a firearm by a convicted felon (former § 12021, subd. (a)(1)). The trial 

court sustained six strike allegations (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and 

five prior prison term allegations (§ 667.5, subd. (b)), and sentenced defendant to 

consecutive 25-year-to-life terms on the manufacturing methamphetamine and felon in 

possession counts, a concurrent 25-year-to-life term on the remaining count, and a 

determinate 10-year term for the enhancements.

On July 7, 2014, defendant filed a pro per motion for recall of sentence pursuant to 

section 1170.126. The public defender had been initially appointed to represent 

defendant, but had “made an initial threshold determination that [the office was] 

essentially precluded from filing a petition based on the nature of the conviction” adding 

“[t]here was a personal use allegation that was found true by a jury.” 

The trial court denied the motion, citing the “nature of the charges” of conviction, 

without elaboration. 

DISCUSSION

Whether the protections afforded by Wende and the United States Supreme Court 

decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal 

from an order denying a petition brought pursuant to Proposition 47 remains an open 

question. Our Supreme Court has not spoken. The Anders/Wende procedures address 
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appointed counsel’s representation of an indigent criminal defendant in the first appeal as 

a matter of right and courts have been loath to expand their application to other 

proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d 

539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 

952; People v. Serrano (2012) 211 Cal.App.4th 496; People v. Dobson (2008) 161 

Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman

(2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.)

Nonetheless, here counsel has already undertaken to comply with Wende

requirements and defendant has been afforded the opportunity to file a supplemental brief

and has filed one. Thus here we shall adhere to Wende. The additional effort required of 

this court to complete the review prescribed by Wende is relatively minor in comparison 

to the expense that would be incurred if we dismissed the appeal and the Supreme Court 

subsequently determined that Wende review was compelled as a matter of law. Despite 

our skepticism, we shall review the case pursuant to the procedures enunciated in Wende.

First, we have reviewed the record and see no arguable error that would result in a

determination more favorable to defendant. Turning to defendant’s supplemental brief: 

he first asserts that “[t]here was no personal arming wording that made this being [sic] 

personally armed a serious or violent crime. It was only an enhancement.” He next 

claims that Proposition 36 retroactively turned this enhancement into a serious or violent 

felony, “moving the goal post, without allowing [him] the chance to defend himself.” 

Finally, he claims he was entitled to an evidentiary hearing. 

Section 1170.126 allows a defendant currently serving three strikes sentences for 

crimes no longer subject to the third strike penalty to petition for resentencing. 

(§ 1170.126, subd. (a).) One of the disqualifying factors from such resentencing, as 

cross-referenced in section 1170.126, subdivision (e)(2), is that a defendant was armed 

with a firearm during the commission of the current offense. (§ 667, subd. (e)(2)(C)(iii).) 

There is no pleading and proof requirement for this exception. (People v. Osuna (2014) 
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225 Cal.App.4th 1020, 1033; People v. Blakely (2014) 225 Cal.App.4th 1042, 1058; 

People v. White (2014) 223 Cal.App.4th 512, 526-527.)

As we have explained ante, a jury found defendant was personally armed with a 

firearm while manufacturing methamphetamine. Thus defendant is disqualified at the 

threshold from resentencing as to this offense. He is not entitled to a hearing on the issue 

of eligibility for resentencing. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1340-

1341.) 

DISPOSITION

The order denying defendant’s motion to modify is affirmed.

 /s/

Duarte, J.

We concur:

 /s/

Raye, P. J.

 /s/

Blease, J.