1

Filed 7/18/14 P. v. Wall ace 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ERIC GENE WALL ACE,

Defendant and Appellant. E060334

(Super.Ct.No. FRE006408)

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

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Eric Gene Wallace appeals after the trial cour t denied his

petition for resentencing under Penal Code section 1170.126, known as the Three Strikes2

Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. ( Nov. 6, 2012) )

. 1 A

notice of appeal was filed on defendant’s behalf on January 7, 2014

. 2 We affirm.

PROCEDURAL BACKGROUND

On January 14, 2004 , a jury found defendant guilty of one count of robbery.

(§ 211.) A trial court found that he had two prior strike conviction s (§§ 1170.12,

sub d s. (a)

- (d) & 667, subd s

. (b)

- (i) ) and one prior serious felony conviction (§ 667,

subd. (a)(1)). On June 10, 2004 , the court sentenced him to state prison for 25 years to

life on count 1, plus five years on the section 667, subdivision (a)(1) enhancement

.

On November 20 , 2013, defendant filed a n in pro pria pe r sona petition for recall of

sentence under section 1170.126. The court denied the petition since defendant’s current

conviction was for a serious offense, which made him ineligible for resentencing under

section 1170.126. (§ 1170.126, subd. (e)(1).)

1 All further statutory references will be to the Penal Code, unless otherwise

noted.

2 We note that the appealability of the denial of a section 1170.126 petition is currently being considered by the Supreme Court. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708 [court held it was not appealable]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31,
2013, S212017 [court held it was appealable].) Even if we were to conclude 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, 852

- 853 [Fourth Dist., Div. Two] [treating appeal as peti tion for writ of mandate due to uncertainty in the law].) In any event, we will review defendant’s appeal.3 AN A LYSIS

After the notice of appeal was filed, this court appointed counsel to represent

defendant. 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 [87 S.Ct. 1396, 18 L.Ed.2d

493], setting forth a statement of the case, and identifying one potential arguable issue:

whether the trial court erred in denying defendant’s petition for resentencing under

section 1170.126.

Defendant was offered an opportunity to file a personal sup plemental brief, which

he has not done. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an

independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMI REZ

P. J.

We concur:

RICHLI

J.

MILLER

J.