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Filed 11/1 3 /15 P. v. Berg CA3 Reposted to provide correct filing date NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

- 00 87)

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 fro m 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

.

1 Further undesignated statutory references are to the Penal Code.2

Althou gh 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, explain ing why the contentions he raises in his supplemental brief

ar e devoid of merit . W e 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)). T he 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 pub lic 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 f ound 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 A nders 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 address3

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; Peopl e 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

an d 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 Suprem e Court subsequently determined that Wende review was compelle d 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 arguabl e error that would r esult in a
determination more favorable to defendant. Turning to defendant’s supplemental brief : he first asserts that “ [t] he re was no personal arming wording that made this being [ sic ] personally armed a serious or violent crime. It was only an enhance ment.” 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).) O ne of the disqualifying factors from such resentencing , as

cr oss

- 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. O suna (2014)4

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, 52 6

- 527.) As we have explained ante , a jury found defendant was personally armed with a firearm while manufacturing me thamphetamine. Thus d efendant 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.