1 Filed 11/21/13 P. v. Aguayo CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. GABRIEL AGUAYO, Defendant and Appellant. E058421 (Super.Ct.No . FSB026475) OPINION

APPEAL from the Superior Court of Sa n 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. Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.2 Defendant and appellant Gabriel Aguayo appeals from an order denying his petition for recall of his indeterminate life term under Penal Code section 1170.126, subdivision (f). 1 We will affirm the order.
I PROCEDURAL BACKGROUND On December 29, 2000, a jury found defendant guilty of one count of residential burglary (§ 459, count 2); two counts of assau lt with a firearm (§ 24 5, subd. (a)(2), counts 3 & 5); and one count of possession of a fir earm by a felon (§ 12021, subd. (a), count 6). 2 In addition, the jury found true the special allegation that defenda nt personally used a firearm within the meaning of section 120 22.5, subdivision (a)(1), in the commission of the assaults. In a bifurcated bench trial, th e trial court found true the special allegations that defendant had suffered three prior serious or violent felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious fe lony convictions (§ 667, subd. (a)(1)), and three prior pr ison terms (§ 667.5, subd. (b)). On September 11, 2001, after granting defendant’s mo tion for a new trial on counts 2 and 3, and denying

1 All future statutory references are to the Penal Code unless otherwise stated.

2 The jury found defendant no t guilty of two counts of ro bbery. (§ 211, counts 1 & 4.) The jury also found not true the special allegations that in the commission of the robbery in count 1 and the residential burglar y defendant had personally used a firearm, to wit, a rifle, and that in the commission of the robber y in count 4 defendant had personally and intentionally discharg ed a firearm, to wit, a rifle.3 defendant’s motion for a new tr ial on counts 5 and 6, the tr ial court sentenced defendant to a total term of 42 years to life in state prison under the three strikes law. 3 Defendant subsequently appeal ed to this court. Defenda nt’s claims were rejected and the judgment was affirmed. ( People v. Aguayo (Aug. 23, 2002, E0 30343) [nonpub. opn.].) Defendant later sought federal habeas relief. The federal district court denied defendant’s request for relief. ( Aguayo v. Ollison (C.D. Cal., Mar. 20, 2008, No. ED CV 07-607 RGK (SH)) 2008 U.S. Dist. Lexis 25373.) On November 6, 2012, the electorate pa ssed Proposition 36, also known as the Three Strikes Reform Act. Among other things, this ba llot measure enacted section 1170.126, which permits persons currently se rving an indeterminate life term under the three strikes law to file a petition in the senten cing court, seeking to be resentenced to a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion, that the defe ndant meets the criteria of section 1170.126, subdivision (e), the court may resentence th e defendant. (§ 1170 .126, subds. (f), (g).) Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is eligible for resentencing if he or she is serving an indeterminat e term of imprisonment imposed pursuant to paragraph (2) of subdivisi on (e) of Section 667 or subdivision (c) of

3 Defendant’s sentence consisted of the fo llowing: 25 years to life for the assault with a firearm conviction in count 5, plus 10 years for the personal firearm use finding attached to count 5; five y ears for one of the prior seriou s felony convictions, plus two one-year terms for two prior prison term findi ngs; and with respect to the possession of a firearm by a felon (count 6), a stayed sentence pursuant to s ection 654. The trial court struck one of the prior seri ous felony convictions and one of the prior prison term findings. The trial court subsequently gran ted the prosecution’s motion to dismiss counts 2 and 3.4 Section 1170.12 “for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdi vision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).) On February 19, 2013, defe ndant filed in pro. per. a petition for resentencing under section 1170.126. The trial court de nied the petition on Ma rch 21, 2013, because defendant’s current commitmen t offense for assault with a firearm, with a special allegation for use of a firearm, is a serious and/or violent fel ony under section 667, subdivision (e)(2)(C)(iii), which made defendant ineligible fo r resentencing under section 1170.126, subdivision (e)(2 ). Defendant filed a timely notice of appeal.
II DISCUSSION We appointed counsel to represent defenda nt on appeal. After examination of the record, 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, setting forth a statement of the case, a summary of the facts and pote ntial arguable issues, and reque sting this court conduct an independent review of the record. We offered defendant an op portunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we have independently reviewed the record for potential erro r and find no arguable issues. Defendant’s current commitment conviction for assault with a firearm with an enhancement allegation that defendant used a firearm in the commissi on of the assault is5 a serious and/or violent fe lony within the meaning of section 667, subdivision (e)(2)(C)(iii).
III DISPOSITION The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

RICHLI J.

CODRINGTON J.