Filed 8/1/16 P. v. R osas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ROSAS,

Defendant and Appellant. H042929 (Monterey County Super. Ct. No. SS001023A)

On April 7, 2000, defendant Robert R osa s was convicted of one count of

unauthorized possession of drugs or alcoholic beverages in prison (Pen

. Code

, § 4573.8 )

,

and the court found true a prior strike allegation

. ( I d

., § 1 170.12, subd

. (c)(1) .) The trial

court denied a motion to dismiss the strike prior and sentenced defendant to 32 months in

prison. 1

On May 27 , 2015

, defendant filed a petition for re sentencing pursuant to Penal

Code section 1170.18 , subdivision (a ). The district attorney opposed the petition

, contending that defendant’s conviction for Penal Code section 4573.8 is ineligible under

the statute. On September 2 3 , 2015, the court denied the petition , finding the offense

ineligible for the requested relief

. Defendant filed a timely notice of appeal on

October 16 , 2015.

On appeal, we appointed counsel to represent defendant in this court. Appointed

counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496

1 We affirmed the conviction in People v. Rosas (Apr. 23, 2001, H022183 [ nonpub

. opn])

.2

( Serrano ) , which states the case and the facts but raises no specific issues

. Pursuant to

Serrano

, on April 11 , 2016

, we notified defendant of h is right to submit written

argument in h is own behalf within 30 days. On April 2 6, 2016, we received

defendant’s supplemental b rief. In his brief defendant contends the trial court failed to

exercise its discretion “to strike the prior conviction in the interests of justice and in view

of the expressed Legislative intent to reduce the sentences of those prisoners who do not

pose a current risk of danger to the community if released on parole.” However the trial

court has neither the discretion nor duty to evaluate defendant’s danger to public safety

unless it first finds that the petitioner was convicted of an offense eligible fo r
resentencing under the statute. (Pen. Code

, § 1170.18, subd s

. (a) & (b).) Further, Penal

Code section 1170.18 does not authorize a trial court to reconsider a motion to dismiss a

prior strike, brought pursuant to Penal Code section 1385 and People v. Superior Court

( Romero ) ( 1996) 13 Cal.4 th 497

, which it previously denied. The trial court lacks the

discretion to do so once the case is final, whether the offense is eligible for resentencing

under the statu t e or not. As t he underlying convic tion is long final

, nothing in

defendant’s supplemental brief raises an arguable issue on appeal from an order denying

his petition, we must dismiss the appeal

. ( Serrano

, supra , at pp. 503

- 504.)

D ISPOSITION

The appeal is dismissed.Premo, Acting P.J.

WE CONCUR:

Elia, J.

Bamattre

- Manoukian, J.